Transit Agencies Providing or Subsidizing Innovative Micromobility Projects: Legal Issues (2024)
Chapter: IV. RISKS AND CHALLENGES
Micromobility regulation is an evolving and dynamic field that requires constant adaptation and innovation from cities and stakeholders. Local governments, regulators, and transit agencies need to balance the benefits and challenges of micromobility while ensuring that it is safe, equitable, sustainable, and integrated with other modes of transportation.
The following chapters of this report explain the different ways that regulators can influence the behavior of market participants through regulations and contract terms, and provide examples from various jurisdictions where these methods have been applied.
IV. RISKS AND CHALLENGES
A. Public Safety Risks
E-bikes, e-scooters, and human-powered micromobility devices pose different challenges for regulators, but the public safety issues are largely the same. Researchers at the University of California, San Francisco, found that injuries and hospital admissions related to e-scooters in the United States nearly doubled between 2017 and 2018.77 The observational study analyzed U.S. government data on nonfatal injuries treated in emergency rooms.
An increase in injuries and public complaints about users riding or parking micromobility devices on sidewalks has left municipal regulators struggling with how to protect public safety and mitigate risk without stifling innovation.78 Common causes of injuries include collisions with a pedestrian, bicyclist, car, or scooter rider; swerving, stopping, or jumping off the device to avoid a collision; being “doored” by a vehicle; falling off the device due to road hazards, such as potholes or uneven pavement; and falling off the device due to a device defect or malfunction.
In 2022, the U.S. Consumer Product Safety Commission (CPSC) released a report on the injuries and deaths associated with micromobility devices from 2017 to 2021.79 The report found that there were more than 267,700 emergency room visits and 129 fatalities due to all micromobility products from 2017 through 2021.80 Emergency room visits have spiked 127 percent from 34,000 in 2017 to 77,200 in 2021, and deaths rose from five in 2017 to 48 in 2021.81 The top hazards in e-scooter and e-bike fatalities were incidents with motor vehicles and user-control issues, followed by fires.82
According to the 2022 CPSC report, e-scooter injuries increased the most between 2017 and 2021 and accounted for 68 micromobility-related deaths during that time. An October 2020 study from the Insurance Institute for Highway Safety found that e-scooter riders suffered injuries more frequently per mile traveled than bicyclists, but bicyclists were three times as likely as scooter riders to be hit by motor vehicles.83 The Insurance Institute for Highway Safety also found that e-scooter riders were twice as likely as bicyclists to be injured by a pothole or crack in the pavement or other infrastructure like a signpost or curb.84
Riders on battery powered and motorized devices may pose an increased risk to pedestrians compared to riders on pedal bicycles. Higher speeds may increase the risk of collision in general and, combined with heavier devices, can lead to greater damage when collisions occur. E-bike-related injuries were found to be three times more likely to involve a collision with a pedestrian than either pedal bicycles or powered scooters.85 Risks also increase for those riding the devices. Those injured while using e-bikes are more likely to suffer from internal injuries, and powered scooter injuries are three times more likely than e-bike injuries to result in concussion diagnoses.86 Collisions between e-bike riders and pedestrians may be partly attributable to risky riding behavior, including riding at high speeds, running red lights, and riding against traffic.87 Factors that can influence risky riding behavior include age, gender, vehicle type, and road traffic.88
Injury severity is higher on micromobility devices when riders do not wear helmets. A 2018 meta-analysis of 55 studies conducted between 1989-2017 shows significant reduction of head injury, serious head injury, traumatic brain injury, face injury, and the total number of killed or seriously injured cyclists when riders use helmets.89 Typically, helmets are not supplied to users by the micromobility provider. Shared mobility users sometimes use helmets at a lower rate than those using personal devices.90 This can be for many reasons, including stigma, and the sometimes-spontaneous nature of shared mobility use. A
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77 NK Namiri, et al., Electric Scooter Injuries and Hospital Admissions in the United States, 2014-2018, JAMA SURG (2020), doi:10.1001/jamasurg.2019.5423.
78 See NACTO, GUIDELINES FOR REGULATING SHARED MICROMOBILITY, VERSION 2, (Sept. 2019), https://nacto.org/wp-content/uploads/2019/09/NACTO_Shared_Micromobility_Guidelines_Web.pdf.
79 CPSC, MICROMOBILITY PRODUCTS-RELATED DEATHS, INJURIES, AND HAZARD PATTERNS: 2017-2021, (Oct. 11, 2022), www.cpsc.gov/content/Micromobility-Products-Related-Deaths-Injuries-and-Hazard-Patterns-2017-2021.
80 Id.
81 Id.
82 Id.
83 IIHS, SEVERITY OF E-SCOOTER RIDER INJURIES ASSOCIATED WITH TRIP CHARACTERISTICS (Oct. 2020), https://www.iihs.org/api/datastoredocument/bibliography/2216.
84 Id.
85 Id.
86 C. DiMaggio, et al., Injuries Associated with Electric-Powered Bikes and Scooters: Analysis of US Consumer Product Data, INJURY PREVENTION (2020), https://injuryprevention.bmj.com/content/26/6/524.
87 Changxi Ma, et al., Risk Riding Behaviors of Urban E-Bikes: A Literature Review, INT’L J. ENV’T. RSCH. AND PUB. HEALTH (2019), www.ncbi.nlm.nih.gov/pmc/articles/PMC6651001/.
88 Id.
89 Alena Hoye, Bicycle Helmets - To Wear or Not to Wear? A Meta-Analyses of the Effects of Bicycle Helmets on Injuries, ELSEVIER (2018), https://pubmed.ncbi.nlm.nih.gov/29677686/.
90 Christopher M. Fischer, et al., Prevalence of Bicycle Helmet Use by Users of Public Bikeshare Programs, ANNALS OF EMERGENCY MEDICINE (2012), www.annemergmed.com/article/S0196-0644(12)00288-0/fulltext.
discussion of protective headgear requirements in individual jurisdictions is in Section V.B.1 of this report.
The CPSC advises consumers to use caution and safety with these devices. Some of the tips include: always be present when charging devices using lithium-ion batteries; only use the charger that came with the device; always wear a bicycle helmet; before riding, make sure to check for any damage; see and be seen; beware of obstacles; never ride under the influence of alcohol or drugs; follow all manufacturer directions; and report any issues with an e-bike or other micromobility product battery to CPSC on SaferProducts.gov.91
1. Battery Risks
E-scooters, e-bikes, and hoverboards are powered by lithium-ion batteries that can pose various safety risks, such as fires, collisions, and user-control issues. Lithium-ion batteries are used because they are small, lightweight and powerful, however the high density of these batteries makes them prone to overheating and catching fire.92 A lack of regulation of micromobility products allows for the sale and use of manufactured devices that are defective and potentially catch fire. According to the CPSC, out of 207 fatalities associated with micromobility products from 2017 through 2021, 134 were caused by fire hazards and 19 were caused by other electrical hazards.93
New York City has one of the highest number of users of micromobility products, and there have been a large number of fires resulting from their use. It has been reported that four times a week on average, an e-bike or e-scooter battery causes a fire in the city.94 As a result, New York City enacted local laws that mandate all e-bikes and other electric mobility devices sold, rented, or leased within the city to be certified according to the relevant UL safety standards.95 The law also prohibits the sale of uncertified or used batteries. Retailers who fail to comply with these laws may face fines of up to $1,000 per violation.96
B. E-Waste and Environmental Concerns
Because they do not produce carbon emissions, micromobility devices are touted as an environmentally friendly mode of transportation to replace motor vehicles. However, there are concerns over the waste they produce when being disposed after their short lifespan, which is extremely short compared to motor vehicle batteries, which have an average lifespan of 12.2 years.97 A 2019 report by Boston Consulting Group (BCG) concluded that the average e-scooter has a life span of just three months.98 According to the report, e-scooters were originally intended for individual use rather than being shared in an economy. As a result, the extensive use and rough handling they experience have a detrimental effect on their longevity and durability.99
E-scooter companies have slightly higher lifespan estimates for their devices.100 A representative from Bird shared details that coincide with that approximation, mentioning that their initial fleet of vehicles had a duration of just a few months.101 However, the more advanced Bird Zero has an average lifespan of around ten months, while the newer Bird One is projected to endure for over one year.102
Whether a device’s lifespan is three months or one year, their end-of-life product management and recyclability is a subject of concern in evaluating their sustainability. Pictures of e-scooters and e-bikes piled in landfills have circulated the internet in the past, sparking outrage. Correspondingly, Lyft, the largest e-bike share operator in North America, partnered with battery recycling company Redwood Materials to ensure the batteries on its fleet of e-bikes and scooters are recycled.103 Bird has said that the company has established maintenance and repair mechanisms to optimize the reutilization of vehicles and their components. They make an effort to repurpose all salvageable parts and appropriately recycle those that cannot be repurposed. Similarly, a representative from Spin said that the company is developing a procedure for the ethical disposal or recycling of vehicles that have reached a state beyond repair.104
Some cities consider the environmental impact of scooters throughout their lifespan when they issue permits. For example, the San Francisco Municipal Transportation Agency (SFMTA) and the City of Berkeley in California have questions about waste reduction and producer responsibility in their requests for proposals for their respective scooter programs. The
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91 CPSC, MICROMOBILITY: E-BIKES, E-SCOOTERS AND HOVER-BOARDS, www.cpsc.gov/Safety-Education/Safety-Education-Centers/Micromobility-Information-Center.
92 Becky Sullivan, What’s Driving the Battery Fires with E-Bikes and Scooters?, NPR, (Mar. 11, 2023), www.npr.org/2023/03/11/1162732820/e-bike-scooter-lithium-ion-battery-fires.
93 Supra note 79.
94 Matthew Schuerman, Fires from Exploding E-Bike Batteries Multiply in NYC — Sometimes Fatally, NPR, (Oct. 30, 2022), www.npr.org/2022/10/30/1130239008/fires-from-exploding-e-bike-batteries-multiply-in-nyc-sometimes-fatally; N.Y.C. Council, Briefing Paper & Committee Report of the Governmental Affairs Division, Oversight: E-Bikes and Lithium-ion Battery Fire Safety, Nov. 14, 2022.
95 N.Y.C. LOCAL LAW 2023/039, codified at N.Y.C. ADMIN. CODE §§ 20-609–20-610.1.
96 Id.
97 Nishant Parekh & Todd Campau, Average Age of Vehicles in the US Increases to 12.2 years, according to S&P Global Mobility, S&P GLOBAL MOBILITY, (May 23, 2022), www.spglobal.com/mobility/en/research-analysis/average-age-of-vehicles-in-the-us-increases-to-122-years.html.
98 Daniel Schellong, et al., The Promise and Pitfalls of E-Scooter Sharing, BCG.COM, (May 16, 2019), www.bcg.com/publications/2019/promise-pitfalls-e-scooter-sharing.
99 Id.
100 Katie Pysyk, Reduce, Reuse, Rescoot? A Look at E-Scooters’ Long-Term Sustainability, SMART CITIES DIVE, (Jul. 17, 2019), www.smartcitiesdive.com/news/reduce-reuse-rescoot-a-look-at-e-scooters-long-term-sustainability/558691/.
101 Id.
102 Id.
103 Andrew Hawkings, Lyft Is Recycling Its E-Bike and Scooter Batteries with Redwood Materials, THE VERGE, (Nov. 22, 2022), www.theverge.com/2022/11/22/23471884/lyft-redwood-materials-battery-recycle-ebike-scooter.
104 Pysyk, supra note 100.
SFMTA requires permittees to comply with the City of San Francisco’s Zero Waste Policy with regard to disposal of scooters and scooter parts, including hazardous waste such as batteries, and to disclose the number of scooters and scooter parts ending up in the city’s waste stream.105 Berkeley requires operators to explain how they repair or recycle damaged devices and the efforts they will make to reduce landfill waste.106 Berkeley also requires operators provide proof of proper disposal of all batteries and other potentially toxic materials per state law. Similarly, Washington, D.C., wants to know how scooter companies will dispose of batteries.107 The City of Atlanta previously asked scooter companies to provide a plan for how they will deal with broken scooters in a sustainable way.108
C. Liability of Cities for Micromobility Injuries
In the U.S., a person injured by another’s wrongful act may file a tort lawsuit to recover damages from those at fault.109 Traditionally, with a few significant exceptions, tort law is a matter of state law, not federal law. By forcing people who wrongfully injure others to pay the people they injure, tort law serves two primary functions: (i) to compensate those who are injured for their injuries; and (ii) to deter people from acting in ways that may injure others.110 Although governmental actors occasionally cause injury to others or damage to property, until the mid-20th century, the common law doctrine of “sovereign immunity” and the Eleventh Amendment to the U.S. Constitution barred private citizens from suing state government without its consent.111 Many states have it in their constitutions that the state cannot be sued without its consent.112 When micromobility gives rise to bodily injury or property damage, the duties and responsibilities of the various parties involved will depend on whether the rider, the rental company, a pedestrian, a vehicle driver, or someone else, including a governmental actor, was at fault for injuries sustained.
1. Public Tort Claims Acts
The common law doctrine of “sovereign immunity” and the Eleventh Amendment to the U.S. Constitution bar private citizens from suing state government without its consent.113 Some states have similar provisions in their constitutions.114 In many states, public tort claims acts establish the liability of state and local governments for torts, the procedures for filing a claim, and the limitations on monetary damages.115
The Restatement (Second) of Torts § 895B provides:
- A State and its governmental agencies are not subject to suit without the consent of the State.
- Except to the extent that a State declines to give consent to tort liability, it and its governmental agencies are subject to the liability.
- Even when a State is subject to tort liability, it and its governmental agencies are immune to the liability for acts and omissions constituting
- the exercise of a judicial or legislative function, or
- the exercise of an administrative function involving the determination of fundamental governmental policy.
- Consent to suit and repudiation of general tort immunity do not establish liability for an act or omission that is otherwise privileged or is not tortious.
State tort claims acts may be characterized as either “open-ended,” meaning a statutory scheme that generally provides for liability subject to stated exceptions, or “closed-ended,” generally prescribing immunity subject to exceptions for liability.116 These laws serve two primary purposes: (i) waiving sovereign immunity for tort claims, subject to limitations on damages, and (ii) providing limitations on tort damages for entities that do not otherwise have immunity for torts under state law.
Many states have two systems for governmental tort immunity: one for the state and another for governmental subdivisions created by the state, such as cities, towns, and transportation districts created by the state to fulfill their obligations. For example, under the Texas Tort Claims Act, liability of the state government is capped at no more than $250,000 per person and $500,000 per occurrence for bodily injury, and $100,000 per occurrence for damaged property, while liability of a unit of local government is limited to money damages in a maximum amount of $100,000 for each person and $300,000 for each single occurrence for bodily injury or death and $100,000 for each single occurrence for injury to or destruction of property.117
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105 See SFMTA, 2021-2022 POWERED SCOOTER SHARE PROGRAM PERMIT, www.sfmta.com/sites/default/files/reports-anddocuments/2022/05/2021-2022_scooter_permit_terms_and_conditions_and_appendices.pdf.
106 CITY OF BERKELEY APPLICATION CRITERIA: SHARED ELECTRIC MICROMOBILITY PERMIT PROGRAM (SEMPP) (2022), https://berkeleyca.gov/sites/default/files/2022-02/SEMP-Application-Packet.pdf.
107 24 DCMR § 3317.
108 CITY OF ATLANTA, GA., CODE OF ORDINANCES § 150-401.
109 KEVIN M. LEWIS, INTRODUCTION TO TORT LAW, CONG. RESEARCH SERV., IF11291 (Aug. 13, 2019), https://crsreports.congress.gov/product/pdf/IF/IF11291; Alberto Galasso & Hong Luo, Tort Reform and Innovation, 60 J.L. & ECON. 385, 386 (2017). See also John C. P. Goldberg, Twentieth-Century Tort Theory, 91 GEO. L.J. 513, 514–83 (2003) (discussing various scholarly accounts of the purposes of tort law).
110 Tort, BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “tort” as “a civil wrong, other than breach of contract, for which a remedy may be obtained, usu[ally] in the form of [monetary] damages”).
111 U.S. CONST. AMEND. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State”).
112 RESTATEMENT (SECOND) OF TORTS § 895B (1979). See e.g., ARK. CONST. ART. 5, § 20 (Constitutional provision against suit).
113 U.S. CONST. AMEND. XI.
114 RESTATEMENT (SECOND) OF TORTS § 895B (1979).
115 Id.
116 Anthony Z. Roisman, § 66:40 Defeating sovereign or governmental immunity—State tort claims acts, 6 Litigating Tort Cases (West, Aug. 2020), citing Dowers Farms, Inc. v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980).
117 See TEX. CIV. PRAC. & REM. CODE §§ 101.021–101.050.
State governmental immunity has become the exception, not the rule. State tort claims statutes generally prohibit a state agency or local government from paying damages above the cap, even if the entity admits liability and the actual damages exceed the statutory cap. Statutes also limit punitive damages, pre- and post-judgment interest, and costs and attorneys’ fees.
2. Micromobility Lawsuits
When a shared-use bike, scooter, or other micromobility device is involved in an accident, liability will depend on whether the rider, the micromobility rental company, a pedestrian, a vehicle driver, the city or someone else was at fault for injuries sustained.
a. Lawsuits against Cities
Cities are generally responsible for maintaining roadways against defects, such as potholes. If a city failed to remedy a known issue, then the city may potentially be liable. For example, Massachusetts General Law chapter 84, section 15 provides a remedy for those who suffer personal injury or property damage because of defects on city or town roads; for state highways, Massachusetts General Laws, chapter 81, section 18 applies. Under these statutes, a person may bring a claim for bodily injury or property damage sustained because of a defect or lack of repair in or upon a public way if the entity responsible for maintaining the way had reasonable notice of the defect such that it could have been prevented by the exercise of reasonable care. However, the amount of damages that can be awarded under these statutes may be limited. In Massachusetts, a person is limited to $5,000 for defects in town roads and to $4,000 for defects in highways.118
The Southern District of New York found that New York City’s bikeshare stations, “including all of its on-street equipment located in the parking lane, falls within the City’s nondelegable duty to maintain the public roads.”119 Further, the Court found that the city may not delegate this duty by contract as a condition of participating in the Citi Bike public transportation program.
b. Lawsuits against Micromobility Rental Companies
Bikeshare and scooter share companies have been subject to a few private lawsuits alleging negligence based on defects in the devices.120 However, as a result of the arbitration requirements in nearly all micromobility rental agreements, there are very few lawsuits from injuries in connection with e-scooter and bike rentals. The Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq., “declares that a written agreement to arbitrate in any contract involving interstate commerce . . . ‘shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.’”121 In Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468 (1989), the U.S. Supreme Court held that, “[i]n applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA], due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration.”122
Although “the FAA pre-empts state laws which require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration, . . . it does not follow that the FAA prevents the enforcement of agreements to arbitrate under different rules than those set forth in the [FAA] itself.”123 Where “the parties have agreed to abide by state rules of arbitration, enforcing those rules according to the terms of the agreement is fully consistent with the goals of the FAA, even if the result is that arbitration is stayed where the [FAA] would otherwise permit it to go forward.”124 In Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524, 202 L. Ed. 2d 480 (2019), the Supreme Court held that “[w]hen the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract.”
Courts routinely compel arbitration in cases against e-scooter and e-bike rental companies. For example, in a case involving a rented scooter accident, the parties’ agreement to arbitrate was valid and enforceable, and arbitration was therefore warranted under the FAA, because the user agreement plaintiff acknowledged to sign in and rent a scooter was an enforceable “sign-in-wrap agreement.”125 A sign-in-wrap agreement creates an enforceable electronic agreement by requiring users of websites and apps to take a specific action, such as clicking on a “sign-in” button, before using a website or application.126 By doing so, the user agrees to accept the terms of use of the website.
c. Lawsuits by Pedestrians and Others
While those who rent scooters and bikes may be bound by arbitration with respect to claims against the rental companies, pedestrians and others are not. In Hacala v. Bird Rides, Inc., 90 Cal. App. 5th 292, 292, 306 Cal. Rptr. 3d 900 (2023), a pedes-
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118 MASS. ANN. LAWS CH. 84, § 15; MASS. ANN. LAWS CH. 81, § 18.
119 Corwin v. NYC Bike Share, LLC, 238 F. Supp. 3d 475, 497 (S.D.N.Y. 2017), vacated in part, No. 14-CV-1285 (SN), 2017 WL 4075213 (S.D.N.Y. Mar. 13, 2017).
120 See, e.g., Coates v. Lyft, Inc., No. 1:21-CV-1449-SEG, 2023 U.S. Dist. LEXIS 6216 (N.D. GA. Jan. 12, 2023) (scooter rider alleged defective brakes caused him to collide with an electrical box on the sidewalk).
121 Volt Info. Scis., Inc. v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 474, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989) (quoting 9 U.S.C. § 2).
122 Id. at 475-76 (internal citation omitted).
123 Id. at 478-79.
124 Id. at 479.
125 Petukh v. Neutron Holdings, Inc., No. 1:20-CV-2382-CC, 2021 U.S. Dist. LEXIS 69011 (N.D. GA. Mar. 30, 2021). See also Kohutek v. Bird Rides, No. 1:19-CV-833-RP, 2020 U.S. Dist. LEXIS 130397, at *4 (W.D. Tex. Jan. 30, 2020) (granting Bird scooter’s motion to dismiss and compelling arbitration of Plaintiff’s claims relating to injuries she sustained while using a Bird scooter); Phillips v. Neutron Holdings, Inc., No. 3:18-CV-3382-S, 2019 U.S. Dist. LEXIS 171313, at *16 (N.D. Tex. Oct. 2, 2019) (“Any challenges to the enforceability or scope of the Arbitration Provision must be decided by the arbitrator.”); Ingram v. Neutron Holdings, Inc., 467 F. Supp. 3d 575 (M.D. Tenn. 2020).
126 17:48, 3 October 2023, Sign-in wrap agreement, Practical Law ANZ Glossary, w-031-4220.
