A federal judge in Atlanta tossed out a personal injury complaint by a bicyclist who suffered a broken hip when he ran over a Bird scooter left in the roadway.

In dismissing the case as "dead-on-arrival," Northern District Judge Michael Brown nonetheless painted an unflattering picture of the unregulated free-for-all that—until the streets were cleared by the coronavirus pandemic—often resulted from city's welter of rental scooters.    

Bird "moves to dismiss, arguing it can place scooters around the city as it pleases, fail to provide docking stations where customers can return scooters after use, not include any lights or reflectors to make scooters more visible when strewn about the roadway by carefree customers, and avoid liability to plaintiff because it owed him no legal duty," Brown wrote.

"Georgia law supports defendant's argument, and the court grants its motion," he said.

As detailed in court filings, Norman Robinson was riding his bike on Lee Street in Atlanta in September 2018 when he ran into a black Bird scooter left in the street near where a "group of minors" were assembled. 

Robinson lost control and wrecked. He was taken to the hospital, where he underwent surgery for a broken hip and spent months in rehabilitation.

He filed a complaint against Bird Rides Inc. in Gwinnett County State Court in October, asserting claims for failure to equip scooters with warning lights or reflectors, failure to prevent scooters from remaining in roadways and failure to prevent minors from handling scooters.

Bird had the suit removed to federal court and moved to have the case dismissed, arguing that it owed no duty to Robinson and that he could not prove its alleged negligence caused his injuries. 

District Judge Michael Brown, U.S. District Court Northern District of Georgia.

Brown agreed.

Robinson had argued Bird should have known its failure to provide docking stations made it foreseeable that "minors or less prudent adults" would leave then in the street and should have installed warning lights or reflectors, Brown wrote.

But his own complaint acknowledged the "causal conduct of some unknown person—perhaps a Bird customer who discarded the scooter in the road, a prospective customer who found the scooter out of charge as often happens and tossed it aside, a pedestrian who found the scooter blocking a sidewalk and threw it in the road, or someone else." 

Robinson didn't accuse Bird of throwing the scooter into the road, Brown wrote, and "agrees some other person directly caused his injury."

Georgia law generally affords no duty to protect someone from a third party's actions, Brown said, except in cases where a "special relationship" exists such that the defendant has legal control over the third party.

"No such relationship existed here between defendant and the person who intentionally or accidentally threw the scooter in the road," the judge wrote. 

"At best, the unknown person was a customer, at worst a complete stranger," he said.

"In any event, the special relationship exception is inapplicable. It may be foreseeable that a customer would discard a scooter in the roadway. After all, one need merely to drive through town to see how casually electric scooters of all brands litter sidewalks, parking lots, and roadways.

"Nevertheless," he said, "mere foreseeability of a danger does not give rise to a duty, particularly over someone with whom an entity has little or no control."

Brown noted that Robinson had sought leave to amend his complaint but said that there would be no point in doing so. 

"The court has determined that plaintiff's complaint, as currently drafted, lacks merit and is legally dead-on-arrival," he said. "Yet after considering the factual basis undergirding plaintiff's allegations, the court also finds that any amendment would be futile."

Robinson's attorneys are Douglasville solos Dennis Francis Jr. and Eufemia Cabrera D'Amour. The two said they had not had an opportunity to plan their next step, if any.

"We knew it was going to be an uphill climb," Francis said. 

Bird is represented by John Beck Jr. and Nicole Leet of Gray Rust St. Amand Moffett & Brieske in Atlanta, and Stacy A. Alexejun and Sydney VanBerg of Quarles & Brady in Madison, Wisconsin. They did not respond to requests for comment Wednesday.