10/15/2018

That Bird Can Scoot

Bird is another step in the sharing economy—and another new risk for cities

By Andrew L. Smith

At around 4 a.m. on Thursday, July 26, 2018, hundreds of electric scooters were dumped throughout downtown Cincinnati with no notice to city regulators or anyone else. The next day, residents witnessed dozens of electric scooters buzzing around town and zipping down streets at upwards of 15 mph with no regard for safety or street signals.

Where did these nifty electric scooters come from? As it turns out, the “Birds” had arrived overnight.

We are all familiar with ride-booking companies like Uber and Lyft and home-booking companies like Airbnb and VRBO. Electric scooter sharing is the next layer of this modern concept, and the leading company, Bird, is indeed soaring.

Bird, valued at $2 billion and trending upward, is app-based. By utilizing GPS, app users can locate scooters in their vicinity. They can then use the app to unlock a desired scooter, pay a small fee ($1 to unlock and $0.15 per minute of use), and leave the scooter anywhere they choose once they’re finished using it. Birds can travel up to 15 miles on a single charge. At night, Bird employs a workforce called “Bird hunters” to collect, charge, and re-deploy the scooters.

Criticisms of Scooter-Sharing

Not everyone is a fan of Bird and similar companies, such as Lime. In February 2018, Bird agreed to pay $300,000 in fines and penalties to the Santa Monica’s city attorney’s office because the company began operating without city approval.

Since the scooters can be left anywhere and they are not docked on something like a bike rack, users tend to leave them in inconvenient locations. This has resulted in not only annoyances, but also safety concerns. The scooters crowd sidewalks and streets alike, and most city infrastructures are not designed to handle massive volumes of electric scooters capable of traveling throughout all forms of terrain.

Bird’s website proudly states, “We work closely with cities to help make transportation better and more environmentally friendly.” However, experiences in Cincinnati—and news reports from other locations around the country—show this may not be the case. Rather, Bird operates in cities and then begs forgiveness later.

This raises the question: How will cities regulate the scooter craze? The scooters are not bicycles, they are not full-sized motorcycles, and they are not mid-sized Vespas. The Ohio Department of Public Safety does not currently have a designated category for Birds, making the product even more difficult to regulate.

It is unlikely that cities and municipalities already have existing ordinances to regulate and police the use of electric scooters. Will regulation be as simple as requiring riders to wear helmets? Will licenses be required? Will there be age restrictions? These are only a few of the many questions to sort out.

Some cities are considering the scooters as litter and impounding the ones that city workers can find. Other cities are cooperating with Bird to quickly generate rules and regulations to mitigate the dangers and risks. In Nashville, Tennessee, city officials started impounding scooters left in the public right-of-way. Likewise, in San Francisco, the scooters were banned while the city devised a permitting system.

Cincinnati quickly introduced rules for all forms of “shared active transportation” just two weeks after the Birds arrived. The city regulations require the following:

• There must be a written agreement to operate in Cincinnati.

• An e-scooter company can operate with a provisional agreement for up to 60 days and must meet the city’s insurance requirement.

• The company cannot operate more than 100 small vehicles at a time without city authorization.

• A 24/7 customer service line must be shared with local management and operation teams.

• The mobile app must warn users to wear a helmet and ride in the street.

Bird users must also obey certain rules, such as:

• Riding in small vehicles like e-scooters is prohibited on pedestrian sidewalks, but riding on multi-use paths is allowed.

• Riders must obey all traffic laws.

• Only one person is allowed on an e-scooter at a time.

• An e-scooter must be parked on the sidewalk where it does not block sidewalk traffic.

Then there are the obvious safety concerns. Training is not required; neither is the use of a helmet in every jurisdiction. The scooters have powerful engines with instant torque, reaching speeds as high as 20 mph. This is a recipe for accidents, and serious accidents between Birds and cars, pedestrians, and just about every other obstacle found throughout a city, including other Bird riders.

Legal Concerns

Bird specifies that riders agree to use the scooters at their own risk and limits its own liability to $100. However, this limitation of liability does not prevent claims for gross negligence. Moreover, it can be argued that Bird’s business model profits from an unsafe environment and enforcing any waivers or damage limitations is against public policy.

Bird provides no return location and encourages users to leave the scooters wherever they choose. Bird also tracks the scooters using GPS, so it knows if scooters are in potentially troublesome locations. These facts alone could create a strong argument for imposing direct liability against Bird for negligence in the event of a personal injury caused by a user leaving a Bird in a dangerous location.

Bird riders can operate and rent scooters without undergoing any formal training. Although Bird requires renters to scan a driver’s license on the app, this does not equate to being a fully qualified scooter rider. This fact creates a strong argument for imposing direct liability against Bird for negligent operation of a scooter.

Besides the possibility of direct liability against Bird, litigation among Bird riders, car drivers, and pedestrians will certainly be scooting into courtrooms soon. Drivers are not accustomed to seeing electric scooters operate on roads, and sidewalks are generally not designed for electric scooters. The possibilities of potential liability and likely personal injury litigation are limitless.

How will localities begin to regulate and police the use of electric scooters? How will courts and juries apportion fault and liability for personal injury cases involving Birds? Will Bird ever be held directly liable in litigation? These questions are just the tip of the iceberg regarding legal issues surrounding the next step in the sharing economy.



Andrew L. Smith is a partner in the Cincinnati, Ohio, office of Smith, Rolfes & Skavdahl Company, LPA. He can be reached at asmith@smithrolfes.com.

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