Pedestrian Accidents

This week’s question comes from a reader in Larkspur, who writes:

Q:“The intersection of Bon Air and Magnolia in Larkspur is very dangerous. There is a lot of construction going on affecting the signage and control of the intersection, especially during rush hour when lots of cars, bikes and kids going to school are present. Someone was already hurt here and the city hasn’t taken action to reduce or eliminate the danger. What can I do?”

A: Being a lawyer who takes on government entities that fail to monitor and correct dangerous conditions, I know what motivates governments to take action: a demand letter from an appropriate stakeholder indicating that a lawsuit will be initiated if the condition is not corrected.

A city can be sued for a dangerous condition of public property, defined in the California Government Code as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property … is used with due care in a manner in which it is reasonably foreseeable that it will be used.” Courts have held dangerous conditions on public property when the property “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Bonanno v. Cent. Contra Costa Transit Auth. (2003).

Government Code section 835 makes a public entity, such as the City of Larkspur, liable for injury caused by a dangerous condition of its property if the plaintiff establishes the following:

• The property was in a dangerous condition at the time of the injury
• The injury was proximately caused by the dangerous condition
• The dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred
• And, the injury was either:
  • Caused by a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment which created the dangerous condition or
  • The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition

Thus, in order to have a viable lawsuit and hold the city accountable in the unfortunate but likely event of future injuries, you have to send the city a letter that puts them in actual notice of the danger.

I have written letters like this before and seen change occur promptly. This, because if someone does get hurt after the actual notice provided in this proposed letter, the City will find it impossible to claim lack of notice. The more letters you and your neighbors send, shut the greater the chance they act with haste.

You should send the letter to the City Attorney and the City Counsel via the City Clerk. The City of Larkspur outsources the City Attorney function to an outside Law Firm. This is not uncommon in small cities.

Here is a suggested letter:

Larkspur City Attorney,
Sky Woodruff, Meyers Nave, 555 12th St #1500, Oakland, CA 94607
City Counsel, care of
Jamie Kuryllo
City Clerk
400 Magnolia Ave.
Upstairs, City Hall
Larkspur, CA 94939

Gentlepersons,

Please let this letter serve as actual notice of the existence of a dangerous condition at the intersection of Bon Air and Magnolia in Larkspur. The configuration of the intersection, in combination with inadequate traffic control devices, construction, high traffic volumes and other factors creates a non-trivial danger which poses a substantial likelihood of imminent injury or death. The available visibility, signage, signaling and striping is not only inadequate, it gives a false sense of security to pedestrians and cyclists thereby creating a trap for the unwary pedestrian or bicyclist.

This risk is heightened by the fact that there are many children going and coming from school and numerous bicyclists use this intersection as part of their daily commute route.

I am informed and believe that there have already been several serious injuries which have occurred because of the dangerousness of the intersection. As a concerned citizen I implore you to undertake prompt remedial measures to address this hazard. Save lives and taxpayer money by avoiding a tragedy and subsequent lawsuit.

Please forward a copy of this letter to the persons or departments responsible for traffic, pedestrian and bicycle safety as well as those responsible for inspecting, evaluating, maintaining and configuring intersections so they are on notice and can act promptly.

It may be helpful to hold a community town hall on intersection safety.

Please keep a copy of this letter on file with the City Attorney, The City Counsel, the Department of Public works, and Police and Fire Departments.

Please provide me with correspondence indicating receipt of this letter. You may send it by mail to my address _________ and of by email to ___________.

Regards,

This week’s question comes from Quinton in San Francisco, who asks:

Q: “I have been reading your columns on the electric scooters being rented in San Francisco. Is there one scooter company which, from a legal perspective, you believe is better to rent from?”

A: Quinton, based upon my review of the terms and conditions set forth by Skip and Scoot, I do have an opinion: Scoot is the way to go. Not only does it provide you with a free helmet if you request one after signing up, Scoot Networks’ user contract binds the company to provide you with insurance benefits in the event of an accident with a third party or the theft of a scooter. Skip provides neither of these amenities. While both Skip and Scoot are required to maintain insurance with the San Francisco Metropolitan Transportation Authority, it is not clear from the permit language that those regulations require insurance for the benefit of the rider, in addition to the company.

Unfortunately, if you are injured in a collision with another vehicle, whether it’s your fault, the fault of another, or because of a defective product or a defective roadway, no scooter provider will offer you any insurance coverage for your medical bills, lost wages or personal injuries, so you should make sure you have good health insurance before you go riding. If you are harmed by the fault of another then contact an experienced trial lawyer, like myself, for a consultation on your rights.

However, Scoot’s terms of service require the company to provide ”third-party” liability coverage, up to $2,000,000, for damages arising from a rider’s non-negligent use. Third-party liability is implicated when someone, not a party to the agreement between the rider and Scoot or its insurance company, is injured by the rider. Additionally, If a scooter is stolen during the rental period through no fault of the rider, the customer will only be liable up to the deductible amount. You should make sure to follow all required procedures to close out your ride so that you are not deemed negligent and held fully financially responsible for the theft. By using their service, you also give the company the right to bring an action in your name (termed subrogation) against any third party which it believes may be responsible for any incident.

There are several conditions and limitations to Scoot’s insurance coverage. Any independent vehicle insurance you own will be applied first, before Scoot will become financially involved. It is important to note that this coverage requires the user to pay any and all deductible amounts (listed at $500 for the Bay Area) per claim that arises out of a collision. Therefore, if a claim is for less than the deductible, the user will be responsible for paying the entire claim and the third-party insurance does not “kick in.” Scoot also prohibits you from engaging with any other parties to negotiate any outside offer, promise of payment, settlement, waiver, release, indemnity, or admission of liability in relation to a collision.

Scoot provides itself a way out of providing this insurance if you do not strictly comply with all of its terms and conditions of use. Indeed, Scoot clearly states that it “does not cover damage due to User’s breach of the Terms and in such an event User will be responsible for the full cost of such damage.” Scoot’s Terms of Service can be found at scoot.co/legal/united-states/terms-of-service/. You should also familiarize yourself with their Collision and Insurance Policy: scoot.co/legal/united-states/collision-and-insurance-policy/. Those terms include obligations to contact the police and Scoot within one hour, fill out a police report and provide Scoot with a factual description as to how the incident occurred and other details concerning the incident. You will be required to submit the involved license plate numbers, makes and models of involved vehicles, involved drivers’ license numbers and contact information, insurance information, witness information and any information concerning insurance policies you have that may provide you with insurance coverage.

So, if you or someone else is injured and you are on a Scoot scooter make sure to call the police and get a police report. Make sure you get an incident report number, so you can request a copy of the report. If there is only property damage, the police usually will not respond, but you can file a “counter report” at the nearest police station. You can request a copy of the report online at https://sanfranciscopolice.org/traffic-collision-report. This usually takes 10 days to process.

Today’s article is a continuation of my open letter to Scoot, Skip and other providers of the electric, app-based, scooters that are littering our cities. For part 1, please visit “Time for scooter companies to be responsible” and stay tuned: I will inevitably need more than these two columns to provide my readers with the “full scoop” on the greedy and cynical way that scooter companies are behaving and endangering us all, riders and non-riders alike.

Your products present an unreasonable risk of harm to pedestrians, especially the disabled and visually impaired, who trip and fall over the unattended scooters. Many of the scooters are dark in color and not easily seen on a dark sidewalk. While one manufacturer has some lighting on their boards to make them more visible at night, most don’t. As a result, sidewalk, parking lot, and roadway obstructions often cannot be appreciated until someone gets injured by tripping or falling over a scooter. Unlike electric City Bikes, which must be docked to terminate the ride and end user liability, or Jump bikes, which include a locking mechanism for use only at suitable location, your scooters are not required to be returned to fixed or organized locations. Instead, they are left strewn about the sidewalk in random locations. While you “encourage” riders to park them safely, and San Francisco has an ordinance requiring that they be parked near and between certain objects to reduce tripping hazards, let’s face it: your users largely just get off and drop them wherever they want.

California’s basic liability law is contained in California Civil Code 1714 which reads:  “(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” These scooters are YOUR PROPERTY and you are responsible to use care to manage that property. Suggesting that riders park safely does not get you off the hook if you are not taking reasonable steps to manage your property in a safe manner. You should fulfill your legal responsibility by adopting docking stations so that the scooters are left at pre-arranged, well-marked locations in a safe and organized fashion.

As a lawyer who represents unfortunate, blameless people who are injured by the “want of ordinary care” in the management of property, whether it be bikes, skateboards, electronically motorized boards, scooters, cars, slippery steps or driveways, collapsing staircases, unsafe balconies, etc., I would have no problem extending my use of the law to sue a scooter company on behalf of anyone who trips or falls over them.

Your products are endangering innocent property owners in many locations, such as Richmond, San Francisco, and other cities, where they are held responsible for the maintenance of the sidewalks in front of their buildings. As I previously noted in my April 20, 2017 column for this paper, “San Francisco is Obligated to Inspect Public Sidewalks for Hazards,” California State and Highways Code Section 5610 states that “owners of lots or portions of lots fronting any portion of a public street … shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property.” Likewise, San Francisco Public Works Code Section 706 mandates that “owners must maintain sidewalks surrounding their property in a reasonably safe condition.” If a landowner is aware of an obstruction and fails to remove it, they are exposed to financial liability for injuries sustained as a result of the obstruction. By allowing your customers to arbitrarily drop off scooters on sidewalks, where they sometimes cluster around certain buildings, you may cause landowners to be sued for not removing them.

Your terms and conditions are unconscionable and show your lack of concern for users. In your agreements, which you must know most customers fail to read before accepting, you include some of the most unbelievable, self-serving, and, in my opinion, unethical language seeking to shield you from any responsibility for the harms your products cause. It is unfathomable that you seek to escape responsibility from even improper maintenance of scooters, which can and will break and injure or kill people. You go even so far as to require injured riders to waive their rights against scooter manufacturers if the provided vehicle is defective in design or manufacturing.

SCOOTER RIDERS READ THIS CAREFULLY: These scooter contracts include provisions stating that users assume all risks of harm, injury and death, and release manufacturers and vendors from all liability caused by the use of their products, even if those companies are at fault for the injuries.

The following is part one of an open letter to Scoot, Skip, and other providers of electric scooters detailing serious safety concerns I have pertaining to their scooter rental businesses. Part two will be published next week.

I wrote this letter because, as a trial lawyer representing seriously injured people, I see preventable tragedy ahead. The current circumstances remind me of 2012-2013, when Uber and Lyft first hit the streets and I was writing about the inevitable injury and death I could foresee from their business models, as well as the resulting insurance crisis in which victims would be unable to receive compensation for medical expenses, lost wages, and loss of loved ones.

Tragically, shortly after I wrote about those risks, Sophia Liu was killed by an Uber driver on New Year Eve of 2013 and Uber denied any responsibility for her death. After Sophia’s death, I was retained by her family and pursued both a lawsuit on their behalf and, in conjunction with the Consumer Attorneys of California, a change in the law to require Uber and Lyft to provide one million dollars insurance coverage for people injured by their services.

The time has come for these “new scooter transportation services” to act like responsible businesses and ensure their users are not left with life-altering injuries and hundreds of thousands in hospital bills.

To Whom It May Concern:

I am writing you to put you on notice of safety risks created by your products/services, your non-compliance with the California Vehicle Code, your unconscionable contract clauses which harm your consumers, and the lack of insurance coverage which will leave your users financially and, in many instances, physically crippled for life if injured in a collision. I appeal to your consciences and implore you to take immediate action to correct these very real threats to public safety before someone is severely injured or killed. I can assure you that such a day is unfortunately, and inevitably, fast approaching. You now have the opportunity to act as a socially responsible business by adapting your model to prevent injury and protect those who will ultimately be harmed by the use of your product.

Based on my review the following is my educated legal opinion about the dangers and legal violations which your products/services create.

Your devices appear to fall under regulations promulgated under the California Vehicle Code, meeting the definition of an “electronically motorized board (EMB)” pursuant to California Vehicle Code Section 313.5.

Your products/services are defective due to their lack of providing required head protection (helmets). California Vehicle Code Section 313.5 requires that a user of an EMB use a helmet if they are operating on a roadway, sidewalk or bike path.  You know your products will be operated on these facilities, yet you provide no helmets! That is analogous to a rental car company renting vehicles without seatbelts. Any casual observer can see that the majority of users of your products are helmetless. As such, you should provide a helmet or obtain proof of the use of a helmet before you rent your product. Anything less is socially irresponsible and uncaring for your customers. The fact that it may be difficult to create a mechanism to reliably provide each user with a helmet does not circumvent the requirement that a helmet be used.  

Your devices violate minimum visibility requirements. Along with head protection, there is probably no bigger safety factor than visibility. California Vehicle Code Section 21293 requires that EMB’s meet certain minimum visibility standards: 1) a headlight that provides a minimum of 100 feet of visibility; 2) a red tail light visible from a minimum of 500 feet; and 3) white or yellow reflectors on the sides visible from no less than 200 feet. To comply with Section 21293, the lighting must be visible to others who are using the travel ways and may be affected by the movement of the scooters. A review of your scooters on the roadways demonstrates that most, if not all, vehicles violate these visibility requirements. While Scoot vehicles have headlights mounted on their handlebars, and therefore visible to others in a normal and customary manner, their luminosity is questionable and may vary depending on the charge in the battery. Skip vehicles have lights positioned on the floorboard, less than 10 inches off the ground. These lights may provide some visibility for the user to see roadway defects, but do not alert other roadway users to the scooter’s presence. Moreover, neither service provides white or yellow reflectors on the sides of the devices and their rear tail lamps are weak, small, and too low to be meaningfully visible. In short, these devices appear to be defective and dangerous products manufactured and operated in violation of the California Vehicle Code.