E-scooters: The Popular Electric Device Confounding Lawyers and Lawmakers Alike

September 10, 2019

In the past few years, e-scooter rideshare companies, like Bird and Lime, have popped up in major cities around the United States, including North Carolina cities Charlotte, Raleigh, and Durham. The e-scooters are so popular in Charlotte that riders have logged over one million miles. Users can simply download the company’s app on their phone, enter credit card information, tap a button to unlock a nearby rental e-scooter, and start riding. The scooters typically have a maximum speed of 15 miles per hour, and users pay for the rental by the minute. The scooters are dockless, meaning there is no designated return area for the scooter, although the companies recommend avoiding public pathways.

E-scooter Liability Issues

Riders of e-scooters frequently suffer from lacerations, head injuries, and broken bones. E-scooters have been blamed for approximately 1,500 injuries in 2018, and eleven deaths, including the death of a popular YouTuber. A limited study of 249 Californians by JAMA Network revealed that even pedestrians aren’t safe from the wrath of e-scooters, and they make up approximately eight percent of those injured. The study has been criticized by a Bird executive for “fail[ing] to take into account the sheer number of trips taken,” but, a proposed class-action suit in California begs to differ. On behalf of eight plaintiffs, the lawsuit accuses e-scooter distributors, including Lime and Bird, of “gross negligence” and “aiding and abetting assault.” The complaint goes on to criticize the defendants’ “guise of the commendable goals of furthering personal freedom and mobility and protecting the environment,” and accuses each of them of “endangering the health, safety and welfare of riders, pedestrians and the general public” by negligently allowing the scooters to become a “public nuisance” due to the dockless model of allowing users to leave the scooters on public streets.

Importantly, the class action suit was filed by pedestrians, not e-scooter riders. When riders download these companies’ apps, they also agree to the companies’ terms and conditions, which include liability waiver, arbitration, and class action waiver clauses. This has created issues for personal injury lawyers, whose clients often do not realize that they waived liability before they were seriously injured. “I’ve been practicing law for 25 years representing personal injury victims. . . I have never seen these kind of devastating injuries before scooters arrived,” said Catherine Lerer, whose law firm filed the class-action complaint. The frequency and severity of injuries has baffled lawyers, and, despite low prospects of winning, many attorneys are willing to challenge the legality of the contracts to seek relief for their clients. Putting aside user fault, many people have been injured by technical malfunctions, or “scoot-and-run” situations where the rider can’t be identified.

Lawmakers Are Struggling to Keep Pace with a 15 MPH Scooter

There has been endless controversy over how to regulate these electric devices. Some college campuses, a popular audience for e-scooter companies, have banned or severely limited e-scooter use on campus. Arizona University justified its restrictions due to concerns about the “safety of e-scooters and their potential to limit accessibility on campus, especially for those with disabilities[.]” The University of Oregon banned the use of rental e-scooters entirely (but not individually owned scooters). Oklahoma State University initially banned e-scooters, but now allows them under limited conditions.

Cities and states are slowly figuring out how to regulate these devices, but not all of these regulations are well-received. Just last month, Atlanta banned nighttime use of e-scooters and e-bikes on city streets. The curfew was imposed after four e-scooter riders were killed by drivers at night. The city plans to develop “further long-term measures” but decided to impose the curfew for the safety of “scooter riders, motorists, cyclists, those in wheelchairs and pedestrians.” Critics, however, accuse the curfew of being “nonsensical” and “penaliz[ing] micro-mobility users while letting the operators of 3,000-pound killing machines off scot-free.”

Would these scooters be causing so much hassle if they weren’t electric?

It stands to reason that if the scooters weren’t electrically powered, and made so easily accessible through rideshare companies, that maybe injuries, lawsuits, and regulator confusion wouldn’t be so prevalent. The small component of this electric motor has befuddled lawmakers and users alike. Some cities (looking at you, Denver) still classify e-scooters as “toys” and allow them to be ridden on sidewalks, despite the known danger to pedestrians. Some cities that allow e-scooters classify them as “vehicles” (akin to an e-bike or moped) allowing e-scooter riders on public streets, but prohibiting e-scooter use on public sidewalks. Even though the sidewalk bans are in place, enforcement seems few and far between. Some regulators worry that violators will be undeterred by the prospect of a receiving a fine.

Some argue that the federal government “should standardize electric scooter laws[,] and license requirements should be considered to decrease the risky behaviors associated with motorized scooter use.” This concern for standardization mostly stems from differing helmet laws. In New Jersey and California, e-scooters are regulated like traditional bicycles, and helmets are only required for people under 17 years old. In the JAMA Network study discussed earlier, the mean age of e-scooter injured patients was about 38 years old, and less than eleven percent of riders were under the age of 18.

E-scooter Haters and Enthusiasts

If you disagree with the implementation of e-scooter sharing systems in your city, or just have an unfounded hatred of e-scooters, you’re not alone. The Instagram account Bird Graveyard (@birdgraveyard) was created by an e-scooter critic in 2018. The account’s creator believes the scooters are “just counterproductive to public transit, and they’re not being used for the right reasons by the right people.”  The account features images and videos of e-scooters on fire, in toilets, thrown into lakes, piled in streets, hit with bats, and even being pooped on. The page also includes an abundance of videos of e-scooter riders getting injured.

However, despite the setbacks, not everyone is an e-scooter critic. Enthusiasts laud the “micromobility” of e-scooters. Micromobility is the general term for transportation using rideshare services with small weight vehicles that can be operated in bike lanes (such as bicycles, e-bicycles, and e-scooters). The idea is that if people turn to e-scooters for short distance travelling, the use of cars would decrease, and this could alleviate traffic congestion, pollution concerns, and possibly prevent deadly car accidents.

There are pros and cons to e-scooter use. But, given how quickly e-scooters have spread throughout major U.S. cities, state legislatures need to act quickly to protect users and pedestrians, many of whom are unable to seek legal redress for their e-scooter woes.

Alessandra Carlton

September 10, 2019