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E-Scooters Raise Legal and Safety Issues

Posted July 12, 2019

By Jonathan A. Karon

Electric scooters, known as “e-scooters” have recently come to my town. They’ve come to many cities across the U.S. and Europe. Their business model is similar to the ride share industry. Users download a smart phone app which allows them to unlock the e-scooter and rent it per ride. Unfortunately, there are a number of serious safety concerns and legal issues regarding e-scooters. I’ve highlighted a few below.

First, e-scooter design raises significant safety issues. Scooters have small wheels which can catch in streetcar tracks. Their brake lights and head lights are frequently tiny, if they are present at all, and turn signals may be entirely lacking. Accordingly, they may be hard to see. Also, many models lack easy to operate brakes.

More disturbingly, e-scooters are not uniformly subject to regular inspection and maintenance and, at least in Massachusetts, there are no regulations requiring it be performed.
This is particularly troubling, because, as will be discussed below, the renters are generally required to release e-scooter companies from any liability for injuries caused by the companies’ lack of necessary maintenance.

Although safety data is still being compiled, a study published in January of this year in the Journal of the American Medical Association (JAMA) found that 40% of e-scooter injuries were head injuries and 30% resulted in fractures. The study found (and this would not be news to residents of my town) that 95% of e-scooter users do not wear a helmet.

The study was limited to e-scooter riders. There is also a serious risk of e-scooter riders injuring pedestrians. Moreover, although e-scooters are only supposed to be operated on streets, it is not uncommon to see them ridden on sidewalks. Presently, injured pedestrians are likely to have little recourse for injuries caused by negligent e-scooter operators. The companies do not provide liability insurance for injuries caused by their scooters and most operators, particularly since they tend to be younger, are unlikely to have applicable liability insurance of their own.

Given all of the above, it’s not surprising that e-scooter companies generally bury releases of liability, mandatory arbitration clauses and confidentiality agreements in their clickware agreements. In other words, by downloading the app, operators agree not to hold the companies responsible if they are injured (even if the injuries were caused by the companies’ failure to properly inspect and maintain the e-scooters) to resolve any claims through binding arbitration (a secret proceeding, with a private judge, operating under rules picked by the company) and to keep information confidential concerning potential safety issues.

At least some of these anti-consumer, anti-safety legal issues could be addressed by legislation. Presently e-scooters in Massachusetts operate in a legal gray area. Current Massachusetts law, specifically Mass. Gen. Laws Ch. 90 § 1E which regulates “motorized scooters”, would seem to apply to e-scooters and would require them to have operational turn signals, among other requirements. Governor Baker has introduced legislation to exempt these companies from the statute and there are various bills pending on Beacon Hill to regulate e-scooters.

There is a proposed model act called the “Safe Small Vehicle Rental Service Act” which contains some of the same protections as current Massachusetts law (which presently requires a driver’s license, requires compliance with all traffic laws and requires use of a helmet) while also requiring that companies certify that they have adequate liability insurance coverage, prohibiting waivers of liability and forced arbitration clauses and providing authority to both the state and local governments to promulgate additional safety rules.

Based on my personal observation and experience I have serious reservations about the wisdom of allowing e-scooters on public streets. But even if you think they’re a great idea, I hope you would agree that the safety and legal rights of both riders and pedestrians should be protected.

I would like to thank my MATA (Massachusetts Academy of Trial Attorneys) colleague Kevin Powers for his fine article “‘Sorry, bruh’: issues relative to electric scooters” which appeared in the May 2019 issue of the MATA Journal and from which much of the factual data related above is taken.

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