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E-Scooters and the Three Cs

Electronic Scooters, or e-scooters, are the new “disruptive transportation technology.” Translation: e-scooters are the new craze in how to get from point A to point B. Their convenience and mobility for short distances in urban settings have made e-scooters popular in such diverse places as Santa Monica, CA, Washington DC, Atlanta GA, and Austin TX. However, as with every new technology, there are controversies, and with e-scooters, there are the three C’s: concussions, complaints, and the CDC and Corrective Action.

CONCUSSIONS

Even for an area used to start-ups acquiring huge amounts of capital in short amounts of time, Lime and Bird, the biggest e-scooter rental companies in the country, shot to unicorn status in unprecedented timeframes. Lime was founded in January 2017, and is headquartered in San Francisco, CA; it is now valued at 3 billion. Bird was founded in September of 2017 and is based in Santa Monica, CA; it is now valued at 2 billion.

However, the injuries from scooter-related accidents were piling up almost as fast as the capital. An investigation by Consumer Reports concluded that a minimum of 1,545 accidents occurred in 2018. The first published study examining scooter injuries was released in the medical journal JAMA in January of this year. The study found that head injuries and fractures were the most common, with the breakdown of injuries being as follows: 80% of people were injured in a fall; 11% were injured by collision with an object; 9% were injured when hit by a moving vehicle. The study noted that only 4% wore a helmet.

The study’s findings are consistent with what ER doctors and trauma surgeons across the country are reporting: at least one e-scooter related injury a day comes into the ER, and one to two major traumatic brain injuries a month require treatment according to the Vanderbilt University Medical Center. In Atlanta, the number of injuries per month went from app. 30 to a stunning 100. Still, a survey by Populus shows that 79% of residents have a positive view of scooters, and use is high. Dr. Hany Atallah, Chief of Emergency Medicine at Grady Health System in GA, is conducting an internal medicine project to study the increase and scope of e-scooter injuries.

COMPLAINTS

It did not take long for the complaints against Bird and Lime to pile up, too. A putative class action lawsuit was filed on October 19, 2018 in Los Angeles County Superior Court against Bird Rides, Inc., Lime and their manufacturers, Segway and Xiaomi. The lawsuit accuses them of “indiscriminate, negligent, gross negligence and/or unlawful deployment of fleets of defective scooters…” The lawsuit also alleges assault on behalf of pedestrians that have either suffered injury or been threatened with injury by the proliferation of scooter-users on sidewalks.

The proliferation of e-scooters themselves has also become a huge problem. Because the business models allow for pick-up and drop-off anywhere, anytime—a big attraction for short, urban transportation—the scooters can often be found all over yards, parking lots, sidewalks, parks, etc. Vigilantes have taken to trashing the unwanted debris, throwing them in dumpsters, setting them on fire, putting them in rivers or lakes, or even displaying them in trees. One property owner who grew tired of the scooters is suing for trespass and nuisance. John Lautemann of Santa Monica, CA, claims that the scooters continuously left on his property are in violation of his rights, and that Bird’s policy “prioritizes users’ convenience over property owners’ rights by encouraging Bird users to pick up and drop off scooters anywhere.” In short, Lautemann’s lawsuit challenges the dockless business model that is convenient for users and profitable for Bird and Lime, but which is bad for property owners and pedestrians.

Bird and Lime’s response to the lawsuits is invariably to point to the 40,000 auto-related deaths annually, and to the environmental benefits of using e-scooters versus motor vehicles. They also note that many of the serious injuries associated with e-scooters could be avoided or ameliorated if users wore helmets, and Bird states that it handed out 50,000 free helmets in 2018. What Bird does not mention is that it was a key sponsor behind a California bill that succeeded in removing the requirement that helmets be worn by scooter users over 18.

CDC AND CORRECTIVE ACTION

In response to the study reported in JAMA and some very highly-profile scooter-related accidents in Austin, TX (one fatal), the CDC announced an investigation into scooter-related crashes and injuries, and how they might be prevented. The investigation will be conducted in Austin, TX.

Lawsuits don’t have to be won in the courtroom to damage companies’ reputations and in turn, their bottom lines. For an industry to be credible, especially a new industry, companies have an interest in avoiding lawsuits that question their image. For an industry that disrupts transportation technologies, that means avoiding lawsuits over personal injuries. It also means adjusting business models to: (1) include insurance (Lime now has a $1 million liability policy); (2) incorporate the gig economy where helpful (Bird pays “Bird hunters” who find and return scooters, and mechanics who repair the scooters if needed); and (3) develop safer models (Lime has developed an upgraded Gen 3 Model Scooter; the new safety features include bigger tires to better handle potholes; brakes on the back wheel to prevent riders from flying over handlebars; and dual suspension).

As with other disruptive technologies in the transportation industry, novel liability issues have yet to be satisfactorily addressed. Uber and Lyft and their gig economy business models leave open the question of whom is ultimately the responsible party if an accident occurs with a privately-owned car driven by independent contractors for a company. Litigation and public policy led the companies to begin carrying insurance to cover the inevitable accidents by its drivers that went beyond the limits of those individual policies. For Bird, a similar question is: if an independent contractor repairs a scooter incorrectly and a rider is injured because of that bad repair, is the mechanic liable or is Bird? Because liability is not clear (and the mechanic may not have insurance or money), some people are advocating for permits with scooter rental companies like Lime and Bird to require the companies to carry a certain amount of no-fault insurance. Another possibility is looking to auto insurance or homeowner’s insurance to cover accidents with e-scooters. The drop off and pick up anywhere business model, with Bird-hunters and independent contractor repairers, means that the liability issues that faced Uber and Lyft will certainly face scooter rental companies. In addition, because scooters are dockless, is damage or even vandalism a foreseeable condition for which the companies should be liable?

CONTACT YOUR ATTORNEY

If you or someone you know has been injured using an e-scooter, contact Dave Thomas at The Thomas Law Firm for a free consultation regarding your legal rights.

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