Last Wednesday, I was picking up my daughter from Blues on the Green. The weekly music festival is so large now that we agreed to meet at the McDonald’s on the corner of Barton Springs and South Lamar. Around 9:30, I saw a young woman on an electric scooter come whizzing by. And then another. And then another. Eventually, Barton Springs was literally swarming with electric scooters. Riders of every age, shape and size. And none of them were wearing any protective equipment: no helmets, no knee or elbow pads, no gloves. I even saw one teenage girl wearing heels as she zoomed along.
As a personal injury attorney, when I see an obviously dangerous activity taking place, I sit up and take notice. The next day, I started doing a little research into electric scooters and the companies that provide them.
There are at least three companies in Austin who are renting scooters to the public: Lime, Bird and Goat. I gathered the following information from the websites of the three companies:
- Bird – Website: https://www.bird.co
Rental agreement: https://www.bird.co/agreement
User manual: https://docs.bird.co/manuals/UserManuals.pdf
- Lime – Website: https://www.li.me/electric-scooter
Rental Agreement: https://www.li.me/user-agreement
- Goat – Website: https://www.ridegoat.com
Rider Agreement: https://www.ridegoat.com/#/rideragreement
From what I can tell, all of the companies use Ninebot Kick Scooters by Segway.
The user agreements of all three companies are essentially the same. All three are full of “legal-ease” with an emphasis on words like “waiver” and “assumption of risk”. It is obvious that none of the companies went into this business “half-cocked”: they have “lawyered up” in a big way. Each of the companies clearly realize that providing these scooters is exposing them to tremendous risk, and they are doing everything they can to shift that risk away from themselves and onto the users of their scooters.
Waiver: What is it good for?
We all see waivers and warnings everywhere we look. Think about the dump trucks you see around town with the sign that says “Stay Back 200 feet. Not Responsible for damages”; or the “Not Responsible for Stolen Items”. What legal effect do these warnings have, if any? Does declaring that you are not responsible make it so? And can you “waive” your right to sue someone who causes you damages?
The answer is: it depends. First off, someone’s negligence cannot be waived. If you can establish that someone’s negligence caused your injury, you can successfully sue that person or company. However, the lawyer defending the party that harmed you CAN use the fact that you signed a waiver against you, and it can be considered along with the rest of the evidence. Say that you go skydiving and you sign the extensive waiver that they present. The jump goes as planned, but the equipment malfunctions and you get injured. If you can prove that the drop zone negligently maintained the equipment or that the equipment was defective, you would still be able to sue them. However, they could present the waiver as evidence that you knew what you were getting into. The jury could allocate a percentage of negligence to each of you: they could decide that the drop zone and the manufacturer were 80% negligent, but you were 20% negligent for jumping in the first place.
Consider the scooter scenario: you decide to use a scooter, you download the app, you pay your money. You briefly peruse all the legal mumbo jumbo on the app. You get on the scooter and head off down the street. A car comes to a screeching halt in front of you, you slam on the brakes, and you crash into the back of the car. Can you successfully sue?
The answer is yes, if you can show that the scooter company has been negligent. Maybe you can show that the stopping power of the brakes was insufficient. Or that the scooter provider failed to maintain the scooter and this failure contributed to the accident. Or that the instructions on how to operate the scooter were insufficient.
The primary purpose of putting waiver language in a rental agreement is to discourage people from suing. Big companies know that they have no legal effect, but they include them anyway. Often times, if a waiver has been signed, the injured party simply resigns themselves to not being able to do anything. Seeing it from a more sinister perspective, you could even say that the waiver language was included by the scooter companies to trick you into not suing. And Goat, Bird and Lime are banking on you not knowing that you can sue.
Assumption of the Risk
All three user agreements go on and on about you assuming all the risk of using their scooter. What legal effect does this have, if any?
Assumption of the Risk was once a valid affirmative defense under common law, but the Texas Supreme Court expressly abolished it in 2015. [1] Although signing an agreement with an “Assumption of the Risk” clause does not prevent you from suing, just like the waiver, the scooter company can present it as evidence against you and the jury can consider it when determining your damages.
Products Liability
All states have strict liability for products that injure someone. [2] Strict liability could definitely apply here. This could place responsibility for injuries caused by the scooters on the scooter providers, the manufacturer of the product (Segway) AND every manufacturer of every component of the scooter that you can show contributed to the accident.
One defense to a products liability claim is the “dangerous instrumentality” defense. This prevents the manufacturer of something that is obviously dangerous, like a knife or a gun, from being held strictly liable. This is applied to products like motorcycles and could be applied to a scooter. But motorcycles are obviously dangerous. They look dangerous, they even sound dangerous. Just seeing one and imagining riding one may elicit a fear response. But what about a scooter? They seem pretty harmless, right? And people are obviously seeing them as harmless, considering that almost every rider uses the scooters with no protection gear.
Renting a Lime
A few nights ago, my 14 years old daughter and I went on a quest to see what is involved with renting a scooter. First, she downloaded the Lime app to her phone. Then we used the “location service” of the app to find a scooter. I used my firm’s debit card to load $10 on her phone, she launched the app and scanned the QR code. A page popped up on her phone that said that a helmet is required, that you must have a valid driver’s license, one rider at a time, you ride at your own risk and must be 18. Some basic information about how to use the scooter was also presented. No helmet or any other protective equipment was provided.
Essentially, all you need to rent one of these things is a phone and a debit card. There is no mechanism to verify the user’s age or whether they have a valid driver’s license. There is no training other than “here’s the throttle and here’s the brake”.
My daughter drove the scooter around a parking lot, and she wobbled all over the place. The scooter’s acceleration was very inconsistent and jerky. The brakes had very little stopping power. She was definitely in no position to drive this thing out into traffic.
Then I got on it. Now I am a fairly big guy, weighing in somewhere between 205 and 210. The scooter is pretty darn fast and you reach maximum speed quickly. When you engage the brake at full speed, this thing has no stopping power. There is no way that these brakes will be sufficient in an emergency braking situation for anyone, much less someone my size.
The Lime scooter has a small headlight and a small taillight. They are both similar to those you see on bicycles. There are no blinkers and no brake lights.
Is Corporate America Really Evil?
I am not a crusader that is trying to run these scooter companies out of business. They provide a product that people obviously want. But Lime is a $2 Billion company and Bird is reported to be worth $1 billion. [3] Companies this size have HUGE legal teams that I can guarantee have looked at potential liability from every possible angle. And they have drafted their Rental Agreement to be as air tight as possible. They KNOW people are going to get hurt on these scooters. They KNOW that they are going to have to pay off liability claims. And they see it as the cost of doing business. They have all decided that the money they can make off of providing these scooters greatly offsets the costs of paying claims. They see that hurting people is worth it as long as the money keeps rolling in.
And when they hurt someone, I will be here to hold them liable.
[1] An affirmative defense means that, as a matter of law, you cannot recover.
[2] “Strict liability” means that you do not have to prove that the company was negligent: you only have to prove that the company made the product and you were injured by it.
[3] Goat is a start-up, but estimated to have financing of over $100 million.
