PITTSBURGH – A Western Pennsylvania woman has settled claims she was seriously injured by the electric scooter she bought on eBay, when its handlebars suddenly collapsed, causing her to lose her balance and fall, sustaining a right ankle fracture.
Kendra Fouse of New Kensington first filed suit in the U.S. District Court for the Western District of Pennsylvania on July 7 versus eBay, Inc., of San Jose, Calif.
“On or about Aug. 20, 2021, plaintiff Kendra Fouse used eBay’s website to purchase an e-scooter. Plaintiff felt confident that she would receive a safe and quality product as eBay’s site encouraged its users, like her, to ‘shop with confidence’ and promoted a money back guarantee on its products. Defendant’s safety policies further bolster a sense of confidence in its users, like the plaintiff. On said date, the plaintiff located a user on eBay’s site under the name of ‘fast-trust’ which advertised what is believed to be an Iwheels brand, model X8 Electric Scooter,” the suit said.
“This model was specifically advertised as being a ‘safe’ product. Plaintiff purchased the X8 Electric Scooter and payment was submitted to eBay for the model in the amount of $359.82. Thereafter, plaintiff received the X8 Electric Scooter and began using it. The X8 model is a ‘foldable’ model that is designed to allow the handlebars to be folded down towards the foot stand of the scooter. To secure the handlebars in an upright position for use, the X8 model utilizes a ‘wingnut’ style component on the front of the handlebar shaft.”
In early September 2021, while riding the X8 model, the plaintiff said that its foot stand suddenly broke away from the wheel and handlebar portion of the e-scooter, and that the handlebar did not fold-down in this incident.
Using eBay’s messaging service, the plaintiff contacted “fast-trust” and reported the incident. The other user agreed to replace the scooter and sent what is believed to be an Iwheels brand, model D8 Pro e-scooter.
“The D8 Pro model was delivered to plaintiff on or about Nov. 24, 2021. The D8 Pro model is similar in color and appearance to the previous X8 model. However, the D8 Pro model utilized a different design component to secure the handlebars in an upright position during use. Instead of a ‘wingnut’, the D8 Pro model utilized a different mechanism to keep the handlebars upright and secure while in use. The plaintiff used the D8 Pro model e-scooter on several occasions, mostly for short trips around her town. Then, in the early morning hours of Dec. 13, 2021, plaintiff was operating the D8 Pro e-scooter on 11th Street in New Kensington, Westmoreland County, Pennsylvania. It was cold at the time; however, no rain, snow, or ice existed on the roadway,” the suit stated.
“Although it was dark, the plaintiff had no trouble seeing the roadway ahead of her – the street was lit with some lights, the e-scooter was also equipped with a lamp, and the plaintiff was using an additional ambient light. As plaintiff operated the e-scooter on 11th Street, she came to a stop sign at the intersection with 4th Avenue. She brought the scooter to a stop and then proceeded forward safely along 11th Street. Shortly thereafter, without warning, the handlebars of the e-scooter collapsed suddenly, causing the plaintiff to lose her balance, crash to the street and sustain serious and permanent personal injuries.”
Those injuries included a tri-malleolar fracture of the right ankle and a surgical procedure to relieve the same injury, severe pain, swelling and numbness in the lower right extremity, in addition to others.
eBay filed a motion to compel arbitration and stay the case accordingly on Sept. 12, claiming that a user agreement dictated all claims be resolved through the arbitration process.
“Arbitration is required under the terms of eBay’s User Agreement, to which plaintiff agreed both when she established an eBay account and again when she entered into the alleged transaction underlying plaintiff’s claims. Users who open accounts with eBay and use its services to purchase and sell items must accept and agree to the User Agreement, as plaintiff did here,” the motion to compel stated.
“The User Agreement’s arbitration clause provides that ‘any and all disputes or claims that have arisen, or may arise, between you and eBay…that relate in any way to or arise out of…the actions of eBay or its agents, or any products or services sold, offered, or purchased through our services shall be resolved exclusively through final and binding arbitration, rather than in. court.” Plaintiff’s claims against eBay arise from injuries allegedly caused by an e-scooter that she purchased from a third-party seller via eBay’s online marketplace. Thus, her claims are subject to arbitration pursuant to eBay’s User Agreement and the public policy favoring arbitration. The Court should therefore (1) compel arbitration of all of plaintiff’s claims , and (2) stay this action pending arbitration of plaintiff’s claims, as required by 9 U.S.C. Section 3.”
The motion added that the parties’ respective counsel “met, conferred and exchanged information relevant to this motion, but were not yet able to reach an agreement on the relief sought.”
UPDATE
Plaintiff counsel requested that the case be voluntarily dismissed on Oct. 11.
“Kindly dismiss this matter, without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Each party is to bear its own fees and costs,” according to the dismissal notice.
U.S. District Court for the Western District of Pennsylvania Judge Marilyn J. Horan accepted the dismissal and ordered the case closed the very same day.
The plaintiff was represented by Lawrence Eugene Gurerra II of Gurerra Law in Pittsburgh, plus Justin A. Browne of Ketterer Browne & Anderson in Bel Air, Md. and Thomas Keilty III of Keilty Bonadio in Baltimore, Md.
The defendant was represented by Brian T. Feeney, Ian C. Ballon and Lori Chang of Greenberg Traurig, in Philadelphia and Los Angeles, Calif.
U.S. District Court for the Western District of Pennsylvania case 2:22-cv-00997
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com