The electronic scooter revolution has transformed South Florida by littering our communities with thousands of pay-per-minute “e-scooters.” Without question, this budding industry will cause injury statistics and litigation to multiply. As the industry continues to overcrowd our streets and sidewalks, trial lawyers will have an entirely new niche to explore and challenges to overcome. There is minimal case law dictating the direction of these novel cases at this time, leaving trial lawyers with the task of molding the law for the multitude of cases to come.

There are a number of viable theories of liability against e-scooter services depending on what goes wrong in the course of the ride. The vast majority of cases will fall into one of two broad categories: failure to adequately warn, instruct and qualify users; and negligent maintenance.

First, the e-scooter industry operates under the premise that their vehicles require no special skill or experience. This is pure fiction. At vastly higher speeds, the e-scooters require a level of balance and agility that many users simply do not possess. Exposing the public to an entirely new vehicle, which must be operated alongside vehicular traffic and in congested pedestrian paths, is certain to result in injuries. This should form a duty of care to provide, at a minimum, reasonable warnings, instructions and training. Similar causes of action have been brought successfully in Florida in the context of jet ski, ATV and Segway rentals.

E-scooter services will also be held liable for the inevitable malfunction of their vehicles. Each service is responsible for thousands of unsupervised e-scooters that are abused on a routine basis. The e-scooters may be operated by dozens of users before they are ever brought in for inspection. Malfunctioning brakes, loose bolts and damaged tires are just a few maintenance issues that can spell disaster for unsuspecting users. E-scooter services will always be held responsible for failing to perform reasonable inspections and maintenance of their vehicles. This can be established by the service's failure to follow the e-scooter manufacturer's maintenance recommendations, failure to adopt maintenance procedures and failure to meet industry standards for vehicle maintenance.

The e-scooter industry will also result in liability of a host of other potential defendants in the zone of the rider's injury. Members of the public can cause horrific injuries to an e-scooter user in a moment of distraction or carelessness. In other cases, e-scooter users will be injured by nonmotorists, i.e., bicyclists, other e-scooter users and even pedestrians. Here, trial lawyers should look to the individual defendant's homeowner's insurance, personal liability insurance and personal assets.

Roadway design and maintenance defects will also play a role in e-scooter injuries. Municipalities have a duty to perform reasonable inspections and maintenance of their streets and sidewalks, subject to applicable sovereign immunity provisions. Beyond the more apparent defects, trial lawyers will also encounter dangerous roadway designs that leave e-scooter users especially vulnerable, including:

• Uneven asphalt on roadways;
• Visibility obstructions due to inadequate sight distances at intersections;
• Visibility obstructions due to foliage or signage;
• Poorly marked crosswalks;
• Inadequate roadway medians or railings; and
• Improper maintenance of traffic in work zones

Trial lawyers must also consider any negligent operation of private property owners where e-scooters are expected. For example, shopping centers and college campuses should not allow e-scooters and pedestrians to coexist on narrow walkways where there is a high risk of collision. Commercial property owners may also be liable for allowing their shopping carts, wheel stops and other equipment to obstruct vehicle paths, or for allowing defective or excessively slippery parking lot surfaces.

The investigation of e-scooter cases must begin immediately. Perhaps the most time-sensitive task is to preserve any video footage. There are now video cameras at virtually every intersection in major cities as public surveillance programs continue to grow. Preservation letters should then be sent to the appropriate entities, which should include applicable legal authority and spoliation language to ensure compliance.

Preservation letters should also be sent to the e-scooter service. A demand should be made to take the subject vehicle out of service immediately and preserve it for inspection. Even in cases where the identity of the user is unknown, the e-scooters have integrated GPS and bluetooth technology, which should allow the service to identify any vehicle in a reported incident based on time and location. Your letter should also include a demand to preserve all maintenance records, GPS data and electronically stored information relating to the vehicle, which may shed light on the precise locations, speeds and condition of the e-scooter.

In cases involving roadway or construction defects, preservation letters should also be sent to any entity that may own or control the area. Importantly, trial lawyers should request advance notice of any repairs so that an immediate inspection can be arranged if necessary. This will create optimal circumstances for spoliation sanctions in the event the property owner makes quick repairs without notice.

As the e-scooter industry continues to transform our communities, injury litigation is certain to follow. Due to limited insurance coverage of motorists and other procedural challenges, these cases will require far more innovative legal strategy than most. In that sense, e-scooter cases are the ultimate opportunity for trial lawyers who enjoy operating “outside the box” in pursuit of justice for their clients.

Ira Leesfield is the founder of Leesfield Scolaro and Justin Shapiro is a partner at the firm.