Brannon J. Arnold, partner, Weinberg, Wheeler, Hudgins, Gunn & Dial. (Courtesy photo)

Pay-per-minute e-scooters are now available on almost every street corner in every major city. Major e-scooter companies, like Bird and Lime, claim there have been over 120 million e-scooter rides in the U.S. in just over a year. As these e-scooters and vehicle sharing services become more popular, questions remain as to how companies can protect their riders and limit their own liability. Below are some best practices companies and manufacturers should follow to avoid this developing area of litigation.

Encourage Safe e-Scooter Use

Most scooter sharing companies are making safety their “top priority.” Many e-scooter manufacturers are constantly updating safety features so that they are easier and more secure to use. A few months ago, Lime released an upgraded model with extra back breaks and bigger wheels that “improve stability by increasing the scooter's grip on the road.” Additionally, Lime's newest e-scooters now have LED screens that detect and alert riders when they are riding on sidewalks or when the riders improperly park the e-scooter. Other companies and manufacturers should be in tune with how their products are used and should strive to produce a safe and cost-effective product for their users. 

In addition to building safer e-scooters, companies are encouraging safe practices while riding. For example, major companies instruct riders to avoid alcohol or one-handed driving. Most e-scooter companies provide educational videos, instructional pages and in-app messages to ensure riders know and abide by applicable rules. Riders are advised to operate scooters on the road in bike lanes as opposed to sidewalks and advised to wear helmets during operation. Recognizing that most riders do not have helmets, some e-scooter companies mail free helmets upon request or provide free helmets at disbursement locations throughout the city. 

Finally, companies should consider interacting with the public to encourage best practices. For example, Bird launched a global safety advisory committee focusing on both rider and pedestrian safety. Companies like Lime and CitiBike have made efforts to emphasize safety as well. 

Just last month, Bird announced plans to visit over 100 cities this summer along with road safety experts to showcase the safe road fundamentals for non-car users. At these events, Bird has promised to distribute free helmets, tutorials of local rules and best parking practices. Similarly, Lime provides tips to car drivers on how to be more aware of all road users, including pedestrians, cyclists and e-scooter riders.

Adopt Specific Contract Provisions

One of the strongest ways that vehicle-sharing companies can limit their liability is to include specific contractual provisions in their “terms of service.” E-scooter users are generally required to sign liability releases, class action waivers, assumption-of-risk waivers and arbitration clauses when renting such equipment. However, waivers do not make companies bullet-proof. Each jurisdiction has its own legal framework for determining the enforceability of these waivers. For example, the states of Louisiana and Virginia have refused to enforce such waivers due to public policy considerations, stating that e-scooter users cannot sign away their rights with the push of a button. See La. Civ. Code Ann. art. 2004 (1985); Hiett v. Lake Barcroft Community Assoc., 418 S.E.2d 894, 895–96 (Va. 1992). Other states, like California, Florida and New Jersey, will not enforce liability waivers in favor of a commercial entity that fails to comply with any safety regulation associated with the activity. Cal. Civ. Code §1668 (West 2018); Torres v. Offshore Professional Tour, Inc., 629 So. 2d. 192, 194 (Fla. Dist. Ct. App. 1993); Stelluti v. Casapenn Enters., LLC, 203 N.J. 286, 304 (N.J. 2010). In Georgia, attorneys have argued that courts should find these waivers unenforceable against public policy because they force people to give up rights to vital public transportation services and access to public rights of way. Georgia courts have yet to rule on these issues.  

Engage with Local and State Governments

Companies should also become involved with local and state Department of Transportation officials to increase road safety and move cities away from being car centric. According to several studies, there is a correlation between the quantity of e-scooter injuries and the friendliness of a city towards non-car road users. Accordingly, many Georgia e-scooter companies have taken steps to increase road safety for their users. For example, Bird actively donates to cities to create protected bike lanes to increase both sidewalk and e-scooter safety.

Companies should also consider partnering with local governments to create specific e-scooter parking. To minimize accidents, some e-scooter companies, such as Bird, are rolling out designated e-scooter parking. For several years, other micro-mobility vehicle sharing companies, such as e-bikes, have obtained designated parking spaces, but e-scooters do not yet have these in most major cities. While part of an e-scooter's appeal is being able to access them anywhere, designated parking would decrease the risk of third-party injuries that can occur while tripping or crashing into e-scooters strewn on sidewalks (or often, in the street).

While there are obviously instances in which litigation is advisable or unavoidable, if companies follow these basic tips, they  may have a better chance at preventing and resolving disputes.

My e-Scooting Experience

While writing this article, I decided to try an e-scooter for the first time. After downloading the app, I quickly found an e-scooter outside my building. I was surprised by the number of screens I had to go through before I could actually ride the scooter. For example, after accepting the terms and conditions, the app provided interactive and step-by-step infographics on how to safely use the scooter. The handlebar also had a sticker reminding users to wear a helmet and not to ride on the sidewalk. It took me just a few minutes to get the hang  of riding the scooter. To start the scooter, I had to kick off three times and then push the throttle button, which only works if the scooter is already moving. When I ended my ride a few minutes later, the app required me to take a photograph of the parked scooter to ensure it was in an area that would not impede a public right of way.

In sum, I was ultimately surprised by how many safety features the e-scooter had, both in the virtual app and in its physical design. While e-scooter companies and manufacturers continue to strive to improve the safety of these devices, users must not forget that they, too, have a duty to exercise ordinary care during operation. Both are required, if Atlantans want continued access to e-scooters.

Brannon Arnold is an Atlanta-based partner at Weinberg Wheeler Hudgins Gunn & Dial. She focuses her practice on civil litigation with an emphasis on product liability, catastrophic injury and professional liability.