The Rise of Falling Off of Dockless Scooters
Major cities throughout the United States have seen a rise in the number of residents using scooters emblazoned with names like “Bird Rides” or “LimeBike”. The scooters, referred to as “dockless” because they do not have a fixed home location, can be picked up from and dropped off at arbitrary locations within the scooter’s service area. Users utilize an application on their mobile device to unlock the scooter and to pay for its use, the amount of which is based on the duration of the use. The mobility of these vehicles makes them largely attractive to commuters and city residents alike as “scootersharing” can be hyper-localized, whereas other forms of shared mobility (think the more commonly known bike share) require set docking stations that are often placed far apart in distance.
However, while convenient, areas that introduce dockless scooters into their communities have seen a spike in scooter related accidents, including “severe” injuries, and in one case, death as a result of blunt force injuries to the head. These injuries are often sustained as a result of “user error”, scooters malfunctioning or flipping over on uneven surfaces or when users are hit by cars or collide with pedestrians.[1] Such accidents have lawyers across the nation wondering just who is responsible in such situations.
In Maryland, there is little guidance on the issue of liability for scooter accidents. Baltimore only entered into agreements with scootersharing companies Bird Rides and LimeBike in August 2018, so questions still remain unanswered about the extent of liability, if any, for which the companies will be responsible. Other areas of Maryland, such as Montgomery County, allow for dockless bikes and are considering expanding to dockless scooters. During the yearlong pilot program with dockless bikes, the Montgomery County Department of Transportation reported few problems or complaints and a survey of residents showed strong support for continuing the program. As scootersharing is so new to the state, the Maryland Transportation Code does not contain a provision for or definition of “scooter”, the closest being a provision for “bicycles and motor scooters.” It remains to be seen whether the legislature will create one so as to include dockless scooters.
Contractually, the use agreements between scootersharing companies like Bird Rides and LimeBike and the City of Baltimore require that the companies indemnify and defend the City against any claims for liability whether in contract or tort. Each company is required to maintain Commercial General Insurance at limits of not less than One Million Dollars ($1,000,000.00) per occurrence as well as Business Automobile Liability Insurance at limits of not less than One Million Dollars ($1,000,000.00) per occurrence, and each company shall include the City of Baltimore as an additional insured on its policy.
In regard to individual riders, when downloading the app necessary to use a dockless scooter, users must agree to the company’s terms and conditions which includes a waiver for any liability and damages. Both LimeBike and Bird Rides encourage users to obey traffic laws and wear helmets while riding a scooter and LimeBike requires riders to go through an “in-app tutorial” on helmet safety in order to unlock a company’s scooter for the first time. However, neither company provides helmets with its scooters. Ultimately, while it is unlikely that every user understands that they are agreeing to such a waiver by utilizing the dockeless scooter app, riders are contractually responsible for the injuries that they sustain as a result of the ride and may even be found contributorily negligent for failing to ride safely with a helmet.
Of course, there are exceptions to every rule and even if treated like a bicycle, there is potential exposure of liability to a scooter company if the user can prove that his/her injury is a result of a scooter malfunction. In October 2018, a class action lawsuit was filed in Los Angeles Superior Court against Lime and Bird alleging, among other things, products liability and gross negligence.
For more information about this article, please contact Ellen Stewart at 410.230.2670 or estewart@fandpnet.com.
[1] https://www.washingtonpost.com/technology/2018/09/20/fatal-e-scooter-accident-emerges-just-california-legalizes-riding-without-helmet/?utm_term=.b19da64992ea
