Detroit Agrees to $7 Million Settlement for Injured Scooter Rider

What Happened?

On August 29, 2021, Justin Almeida was riding a motorized scooter around midnight when he hit a large pothole right before approaching an intersection. The pothole was approximately 24 inches by 30 inches in width and length, and six inches deep. The pothole was located in a street designed for vehicle traffic and was approximately 82 inches from the sidewalk.

Almeida sustained injuries to his entire body, including a fracture to the base of his skull, traumatic brain injury, cognitive defects, facial paralysis, and neck and shoulder injuries. He also suffers from impaired motor coordination, depression, anxiety, and emotional dysregulation. His wife, Tori Porell, stated that the real trauma came days after the accident when it became apparent Almeida was suffering from memory loss. “He wasn’t remembering talking to me,” she describes. Six months later, Almeida was only reading at a 4th-grade level and was suffering from double vision, which prevented him from doing his job. As Porell describes, “His work as a software engineer involves looking at lots of little lines of code and like moving around puzzles and software architecture and we don’t know if that’s work he will ever be able to do again.” Almeida remains in therapy five hours a day, three days a week.

It appears that Almeida was not wearing a helmet, as his wife warns, “It might not look cool to be wearing a helmet, but it's way less cool to have someone teaching you how to read again so definitely, definitely, protect your head.”

The Lawsuit

On March 23, 2022, Almeida and the conservator of his estate filed a negligence lawsuit against the City of Detroit alleging that the city breached its statutory duty and failed to maintain its highway, causing his injuries. Under Michigan law, the state has 30 days to patch a pothole from when it is first reported. Residents of the area claim that the pothole was there for at least six months. Almeida’s counsel, Gerald F. Posner, of Posner, Posner and Posner, stated that, “All the city had to do was to fulfill its statutory obligation to keep the street reasonably safe and fit for travel, and it didn’t.” Posner describes the situation as “tragic when you see what could have been prevented.”

The city of Detroit initially filed a motion to dismiss, arguing that Almeida waived all claims against the city when he signed the Bird Rental Agreement, Waiver of Liability, and Release. The city asserted that as an intended third-party beneficiary of the agreement, Almeida waived all claims against the city as a defendant. Per the agreement, riders agree to “fully release indemnify, and hold harmless…to the fullest extent permitted by law any Municipality” in which the rider uses the scooter.

However, the federal court judge hearing the case, U.S. District Judge Gershwin A. Drain, sided with the plaintiff and found that a Michigan statute that required the city to maintain its highways in reasonable repair so that they are reasonably safe and convenient for public travel precluded the city’s ability to avoid liability as a third-party beneficiary to the agreement. The Court cited the language, “to the fullest extent permitted by law” contained in the agreement and found that the defendant failed to provide any authority whereby a court allowed a party to rely on release language to escape liability based upon a violation of a statutory duty. The Court concluded that the attempted waiver is inoperative as against public policy and therefore, void. The Court also found that there was no evidence concerning whether the plaintiff had, in fact, consented to the terms of the agreement or if the parties had entered into a valid contract.

The Settlement

The Court denied defendant’s motion to dismiss on September 20, 2023. By May 2024, the parties entered into a settlement agreement for $7 million. Judge Drain approved the settlement, finding that it was fair and in the best interests of the injured rider. According to the plaintiff’s counsel, $2 million will go into a structured settlement annuity and $5 million will be paid into a special needs trust, $2.3 million of which will go to attorneys’ fees. Plaintiff’s counsel told the judge that he believed “this is an excellent settlement” and was in the best interests of the client. The city of Detroit is represented by Nikkiya Branch Penson, deputy general counsel of the Detroit Water and Sewerage Department, and Michael K. Sheehy of Plunkett Cooney P.C. The city of Detroit declined to comment on the settlement.