Originally posted on 11/19/2019 (reformatted).

Odds are that you have seen them—the orphan electric scooters.  They have no racks to which they attach. They have no person to whom they belong.  At first, it was just Bird. Then Lime. Now, at least in Detroit, there are more companies than we can keep track of.  These scooters are not only in Detroit. Other parts of Michigan have them as well, as well dozens of other cities like Denver, Oklahoma City, Italy’s Milan, and even Washington, D.C.  These operations usually start overnight without any warning. How does the old saying go? It’s easier to ask for forgiveness, then beg for permission? While the urban benefits may be apparent—despite begrudging to some municipalities—the legalities are still a little hazy.  

So What Are They?

These scooters are connected to phone apps that anybody can download.  Generally, the user has a map of the location of the nearest scooters to him or her.  If one is found, then he or she can “unlock” the scooter with the phone app. Then, the user gets charged a small sum per minute.  After the ride is over, it can be left anywhere with the promise that the user is adhering to any governing laws and rules regarding where the scooter can be left. 

Legally speaking, under current Michigan law, the Birds and kin fall under the definition of “electric skateboard.”  The Michigan Vehicle Code defines electric skateboards as follows: 

“Electric skateboard” means a wheeled device that has a floorboard designed to be stood upon when riding that is no more than        60 inches long and 18 inches wide, is designed to transport only 1 person at a time, has an electrical propulsion system with power of no more than 2,500 watts, and has a maximum speed on a paved level surface of not more than 25 miles per hour. An electric skateboard may have handlebars and, in addition to having an electrical propulsion system with power of no more than 2,500 watts, may be designed to also be powered by human propulsion.

For the most part, these scooters are treated like bicycles.  For instance, similar to a bicyclist, the scooter rider “upon a roadway has all of the rights and is subject to all of the duties applicable to the driver of a vehicle.”  On the other hand, however, there are speed restrictions to the scooters.  

An electric skateboard shall be operated at a speed of not more than 25 miles per hour. An electric skateboard that does not have handlebars shall not be operated on a highway or street with a speed limit of more than 25 miles per hour except to cross that highway or street, and an electric skateboard equipped with handlebars shall not be operated on a highway or street with a speed limit of more than 45 miles per hour except to cross that highway or street.

These are the state laws within Michigan.  Of course, municipalities can create ordinances with additional restrictions “based on the health, safety, and welfare of [its] citizens.  Seemingly, Detroit does not have ordinances yet, but does have “guidelines,” which have been referenced in various online media after a memorandum was drafted on July 18, 2018 studying the compliance of the scooters with the city’s established codes.  The memorandum noted that:

[t]he proliferation of the Scooter fleets in numerous US cities has been met with enthusiasm by [Emerging Mobility Company] members, but has also created new difficulties in managing use of public streets, alleys, sidewalks, and other public spaces.  In some situations, inappropriate use of the Scooters can create a public nuisance or other hazard to public safety. In other situations, Scooters may be inappropriately parked so as to obstruct the flow of pedestrian and vehicular traffic within streets, alleys, sidewalks, and other public spaces.

The word going around, however is that ordinances are in the process of being created for the City of Detroit.  One primary thing that separates Detroit from a city such as Ann Arbor, for instance, is that Detroit has never been opposed to the scooters.  Detroit has been working to create an understanding with the companies, but has been welcoming of them.  Late 2018, the city agreed to let the scooter companies in town increase the amount they each had in the city to a total of 400 on the condition that 100 were located in neighborhoods outside of the popular downtown area.  

Are They Dangerous?

As with almost everything, there is a modicum of danger that comes along with the scooters.  This could be due to user error, equipment malfunction, or otherwise. As fun and perhaps convenient the scooters may be, there is no getting around the dangers that have been presented by their existence.  Some even contend that “lives are being destroyed by unregulated scooters” and that they are “badly affecting our quality of life.”  The scooters have even caught the attention of the Centers for Disease Control (CDC).  A recent investigation and resulting report indicates that head trauma is at the top of the “list of severe injuries involving the use of electric scooters,” which “could have been prevented by the use of a helmet.”  The scooters have gone so far as to become a platform point for local government elections.

Who’s Liable?

Of course, the reason why we want to know whether they are dangerous or not is so attorneys can figure out who to sue when a client comes walking in with an injury.  Right now, the answer is unclear as to who is ultimately liable. While injuries have been piling up, lawsuits are being filed throughout the country. This includes at the very least, class actions filed in California at the state and federal levels.  At least one firm based out of D.C.—Zukerberg & Halperin—has a page dedicated to these scooters.  

To be expected, in order to limit their liability, the scooter companies have user agreements, which include liability waivers.  These agreements are usually presented to the user during the phone app account creation process. Yet, these can be rife with ambiguities, contradictions, and otherwise.  For instance, by signing up for Bird, a rider is representing that he or she is “reasonably competent and physically fit.”  This leaves one to wonder whether he or she needs a physical from a doctor’s office and a certified stamp of “reasonable competency” and “physical fitness” approval.  Sounds silly, but this may very well end up being an argument point in a court of law. 

At the end of the day, as with any personal injury case or even product liability case, the liability determination may depend upon the specific set of facts in front of the court.  The decision-maker must take into account any rights that have been waived; whether the rider was following state and local laws, and safety instructions—e.g. not riding with more than one person or if a scooter is damaged; if any laws or ordinances were violated by any party; whether any insurance policies are in existence; and whether the scooter company did well to instruct its users on safe riding.  In terms of corporate social responsibility, the brunt of the responsibility will lay with the scooter companies. While an innovative and helpful service should not be shut down because of the irresponsibility of a few riders, the companies must show that they are doing all they can to ensure safe practices.

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Silvia A. Mansoor