Electronic scooters have officially rolled into Washington, D.C. and the surrounding suburbs. There are several venture-backed companies pushing out electronic scooter rental networks in cities and college campuses across America, including Bird and Lime. Think Uber, but for scooters. Take a stroll in Clarendon or in Chinatown and you will find tons of scooters littering the sidewalks and people zipping down busy streets on them.
Bird Rides, one of the largest electronic scooter companies, is now valued at $2 billion after a recent $300 million funding round. Scooters can go up to 15 mph and run on the same type of lithium-ion batters that your phone and laptop use. Bird allows people to ride scooters for $1, then 15 cents per minute. Unlike Bikeshare Bicycles, Bird scooters do not have any designated charging station or drop off locations, meaning they can be left anywhere. Predictably, this is a good thing for those looking for scooters, but a bad thing for people walking on the sidewalk.
Under District of Columbia law, electronic scooters are totally legal. D.C. laws also allow scooter uses to ride in designated bike lanes. However, like bicycles, scooters are not allowed to be ridden on sidewalks within the Central Business District. As of today, at least three scooter companies are operational: Bird, Waybots and Lime-S. To find them, you just use an app.
Superficially, electronic, rentable scooters seem like a great idea. They allow city-dwellers to pick a scooter up off a sidewalk and take off with a push of a button. There’s just one problem: they aren’t very safe. There have already been many people injured on electronic, ride-share scooters. One lawsuit recently filed in New York alleges that the plaintiff was injured when the scooter suddenly ejected her, causing serious injury.
On September 21, 2018, a male rider of an electric scooter was killed in Dupont Circle when he was hit by an SUV and dragged for “about 20 yards,” according to a witness. Police say the man died at a hospital shortly after the incident. The man was using a Lime scooter. According to the D.C. Department of Transportation, this was the city’s first fatality involving a shared scooter since the service started in the spring. One witness said that the scooter driver was in a crosswalk at the time of the incident, but it was unclear whether he had the right of way.
Why Electric Scooters are Dangerous
• Visibility: Scooters are very small, making riders less visible to drivers. Scooter riders can be obscured behind traffic.
• Limited Protection: Scooter riders are susceptible to injury because they are exposed to the elements. They have no metal cage or airbags to protect them from collisions. Also, most scooter riders do not wear helmets.
• Limited Stability: Because they only have two small wheels, scooters are extremely unstable. Just the slightest jostling can cause the rider to lose his or her balance. Many scooter riders ride on sidewalks, which have bumps and dips, making for a very dangerous ride.
• Lack of Experience: Most scooter riders have never ridden a scooter before. This lack of experience can have dangerous consequences. A lot of practice is required before a rider can feel comfortable balancing on only two wheels.
• Hazardous Roads: D.C. roads are notorious for construction, potholes, and pedestrians everywhere. Scooters, with only two small wheels, are not the ideal method to navigate the busy streets of D.C.
• Lack of Maintenance: Anecdotal evidence indicates that electronic scooters may be not be maintained as frequently and as well as is necessary. Thousands of people ride electronic scooters every day, but the companies do not have the time or resources to repair scooters daily. As a result, some scooters may have tires that are deflated, brakes that are worn down, or defective motors. This can cause a lot of hazards.
• Lack of Helmets: Unfortunately, many scooter riders do not wear helmets. There is no method of enforcement to require them to do so. This can have dangerous consequences.
So who is responsible when a Bird scooter ride goes wrong? Like most answers in the law: it depends.
Car vs. Scooter Accidents
Scooters are very similar to bicycles. They are generally subject to the same laws as bicycles, with a few exceptions. Here are some examples of the most common scooter and car collisions:
• Dooring– Dooring accidents occur when the driver of a parked car opens the car door in the path of oncoming traffic, causing the scooter rider to crash into the door. These accidents can be avoided by drivers keeping a proper lookout for oncoming traffic. It is also important for riders to keep a proper distance from parked cars.
• Right Cross – Right cross accidents happen when a scooter entering an intersection is side-swiped by a motorist coming from the right side.
• Right Hook – Right hook accidents happen when a car and scooter are traveling parallel in the same lane of traffic with the car to the left of the scooter The car then turns right and hits the scooter. These accidents can be avoided by the motorist keeping a lookout for scooters traveling on the side of the road or in a dedicated bike lane.
• Left Cross – Left cross accidents happen when a motorist is turning left in an intersection and collides with a scooter heading straight in the opposite direction. These accidents frequently occur when a motorist is looking ahead, but fails to see the scooter coming from the other direction to the left or fails to judge the scooter’s speed.
• Rear-Ender – Just like in regular car accidents, scooters can be rear ended too. This occurs when a motorist fails to keep a safe distance from a scooter traveling in front of him.
Product Liability Claims Against the Manufacturer
The most likely way an injured scooter rider could sue an electric scooter company is through what is called a product liability claim. Product liability claims cam come in three varieties:
• Manufacturing Defect: In this claim, the company is negligent during the manufacturing process. This results in a structural problem, creating an unsafe product.
• Design Defect: In this claim, even before the product is made, there is an issue with the design. In other words, the design is inherently unsafe.
• Failure to Warn: In a failure to warn claim, the plaintiff doesn’t claim that the product could be made safer, but that the company failed to warn of the product’s inherent dangers.
Generally, your automotive insurance will not provide any coverage. Most automotive policies only cover activities in and around a car. Obviously, a scooter would not count. When it comes to scooter accidents, an injured rider would need to seek compensation from another vehicle’s insurance or the scooter manufacturer.
Defenses to Claims
• Waiver/Disclaimer: Bird makes its users sign a waiver stating that you agree to “release indemnify, and hold harmless” the company for any injuries or medical conditions. Bird also requires the riders to agree to several provisions, including allowing only one person to operate the scooter at a time, the rider must be 19 years old, and must not by carrying any additional cargo, such as a backpack. It is highly likely that Lime and other scooter manufacturers have similar waiver language. However, it is unlikely a waiver would uphold in court for a design or manufacturing defect claim under a product liability theory of recovery. Under the law in many states, a company cannot disclaim liability under a strict-liability theory of recovery.
• Assumption of the Risk: An electronic scooter company would likely argue that the riders assume the risk of injury. That is why they have waiver language in the rider agreement. However, this defense would be successful if the rider gets injured from something unexpected or unreasonable; for example, a defect in the tire or brakes. A rider certainly does not assume the risk of being injured from a product defect.
• Contributory Negligence: In states that recognize contributory negligence (which include DC, MD and VA), if the injured person bringing the lawsuit was even 1% responsible for her injuries, she will be completely barred from receiving any compensation. This has devastating effects for scooter riders injured by negligent drivers because they are frequently blamed unfairly for accidents between cars and bikes.
What Should You Do After a Scooter Accident?
• Assess the Situation, Get Help: The first thing you want to do is make sure you are okay. Check yourself out and only try to move if it is safe to do so. If you feel that you may be seriously injured, do not try to leave the scene on your own, or you could end up injuring yourself even more. Seek medical treatment if you are injured.
• Call the Police: There are several reasons to call the police after a bike accident. First, the police will create a neutral report of the crash. Insist that the officer write one, even if you do not initially believe the situation merits it. Whether or not you feel it is necessary, you should always ask for a police report. You never know when it could come in handy, either for insurance purposes or for a legal case in the future.
• Gather Witness Information: always want to speak with anyone else who was involved in the accident or any witnesses nearby. For anyone else involved in the accident, you’ll want to have (1) their address and contact information; (2) their insurance information; (3) vehicle information, including license plate number; and (4) the responding police officer’s name and badge number.
• Take Pictures: Take pictures of the accident scene. These will be helpful in dealing with insurance companies and for your potential court case. Having photographic evidence of the scene can be really helpful to a jury in proving a scooter rider’s case.
• Contact an Attorney: After you have done all of the above, then you can contact an attorney. The most important thing is that you have taken care of your health.