Are riders of or companies who supply e-scooters liable in the event of a crash?
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Negligence determines civil liability
The increasing number of scooters and other devices on our streets (hoverboards, electric skateboards, you name it) raise various issues in the personal injury world.
Are these new modes of transport safe? Who is liable in a crash? Is it the rider, the manufacturer or a third-party motorist or pedestrian?
The legal framework that determines civil liability in all collisions is the doctrine of negligence. Negligence is a time-tested, flexible doctrine that means whoever acted in a way that a “reasonably prudent person” would not is liable for the damages they caused. The “burden of proof” is on the injured party.
However, when new technologies are involved, defining what a “reasonable person” should do becomes more challenging. Should a driver reasonably expect to see a person riding an e-scooter on the street? Maybe not 10 years ago, but in urban settings today the answer is yes, because scooters are everywhere. So the standard is evolving.
Every case is fact dependent. Was the scooter driver riding recklessly? Did the rider fail to signal or ignore traffic laws by running a red light? If the rider did, chances are that, if a crash results, the rider may be liable not only for his or her own injuries, but for the injuries the rider causes someone else. Scooter/pedestrian crashes are becoming more common, and pedestrians hit by fast-moving scooters often bear the brunt of the impact. Complex fractures and traumatic brain injuries are not uncommon.
Where the crash took place is also a factor. Sometimes a crash is the partial fault of both parties, and how that fault plays out legally can be affected by the state law of the jurisdiction where the crash occurred. Some states have harsh ”contributory negligence” laws that bar recovery for an injured person completely if that person was even 1% at fault.
How about manufacturers with regard to negligent design of the scooter? These are tough cases to prove, because the injured party has to show the design of construction of the scooter was inherently flawed. And, in instances involving brake failure (which can happen), it’s possible the issue was lack of maintenance by a third-party owner of the scooter (if it was a fleet rental) or by the scooter owner.
Negligence is a good (although never perfect) system and, in my view, is perfectly capable of adapting well to new transportation options. It’s already happening, as increasing numbers of scooter riders have been injured and killed in all types of crashes. While there is no “silver bullet” solution to preventing crashes, all users of our roadways need to slow down, keep their eyes open and carry plenty of insurance.
Bruce S. Deming, Esq., is a personal injury lawyer in Washington, D.C., who specializes in crashes involving bicycles, pedestrians and scooters.
More than one liable party
Attribution of civil liability (Who is successfully sued by an injured victim?), administrative liability (Who gets a traffic ticket from a police officer?) and the rare criminal liability (Who is punished by the state with incarceration or a serious fine?) depends on the facts of the crash and the law of the state.
Unreasonable action or inaction — what law calls negligence — is generally a key indicator of potential civil liability. The negligent conduct of many different actors — e-scooter manufacturers, providers and riders, as well as motorists, governments and property owners — can combine to cause a crash or its resulting injuries. In other words, an actor may be civilly liable if they could have prevented or reduced harm by acting reasonably. This also means that more than one actor can be liable.
Take an example: A 12-year-old child successfully rents an e-scooter from a sharing service without verification. Because the city did not remove debris from a bike lane, the child detours to the sidewalk. While riding too fast, the child swerves to avoid a car whose driver has failed to yield while exiting a driveway, they strike a sign unlawfully placed on the curb by an adjacent business and they crash into a pedestrian. A shard of hard plastic breaks off the scooter and flies into the pedestrian’s eye. In theory, the injured pedestrian might sue everyone involved. In practice, the pedestrian might not sue anyone. Or, if the pedestrian does sue (or if the insurance company sues in the pedestrian’s name), the pedestrian might focus on the actors most able to pay.
The larger policy question is who should be liable. As humans, we tend to focus on the actor most closely connected to an injury in time and space: The scooter rider crashed into the pedestrian, so the rider should pay. In so doing, we overlook all the upstream decisions that contributed to that injury, even when many of these more systemic decisions have a greater impact on overall safety.
Why, for example, do governments build roads that literally and metaphorically marginalize our most vulnerable by forcing them to fight over 6 feet of pavement when adjacent motorists enjoy 60 feet? One hundred people will die on U.S. roads today, and 20 of them will be pedestrians and bicyclists.
On this view, it may also be appropriate to hold e-scooter services to a higher standard so the price they charge their users reflects the costs that these scooters impose on society. However, this would be fair only if we hold all of motorized transport, including automakers and drivers, to the same standard. Law, including rules of liability, should ultimately prioritize pedestrians over bicyclists, bicyclists over e-scooter users and e-scooter users over motorists whose cars and trucks are still overwhelmingly responsible for the crashes and pollution that cause so much death, injury and misery on our roads.
Bryant Walker Smith is a professor at University of South Carolina and former transportation engineer who studies law and technology.
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