trian walking on a Los Angeles sidewalk tripped on a scooter that was sticking out from behind a trash can and brought a lawsuit against the scooter company, Bird Rides, Inc. (Bird), and the City of Los Angeles for negligence and public nuisance. On appeal, the court upheld the trial court’s decision to dismiss plaintiff’s action against the city, which was immune from liability under the California Government Claims Act (Cal. Gov. Code §§ 810–996.6).¹²⁷ However, the Court found that the trial court erred when it dismissed plaintiff’s claims against Bird. The Court found that Bird’s general duty of care under California Civ. Code § 1714 to use “ordinary care or skill in the management of [its] property” encompassed an obligation to move a scooter when it is in a location where it poses a risk of harm to others.¹²⁸ This duty also includes an obligation not to entrust its scooters to individuals who Bird knew or should have known were likely to leave scooters in hazardous locations where they would pose an unreasonable risk of harm to others.¹²⁹ Because it was foreseeable that someone could be injured if Bird breached this duty, and because Bird agreed to take measures to prevent such injuries when it obtained the permit from the city, the Court said it “cannot find that public policy clearly supports an exception to the fundamental principle that a company like Bird is liable for injuries proximately caused by its want of ordinary care in the management of its property.”¹³⁰

V. MITIGATING RISK

Bikeshare and scooter share systems are becoming increasingly popular modes of transportation in many cities, offering benefits such as reduced traffic congestion, lower greenhouse gas emissions, and improved public health. However, these systems also pose challenges and risks for municipalities, such as ensuring the safety of users and pedestrians, preventing vandalism and theft, and regulating the quality and availability of the services. Therefore, municipalities need to adopt effective policies and strategies to manage shared micromobility systems within their jurisdictions. One of the ways that municipalities can do this is by using insurance, contract provisions, licensing conditions, and/or regulatory ordinances to establish clear standards and expectations for the operators, as well as to protect the interests and rights of the city and its residents. This section will discuss how these tools can help municipalities achieve their goals and address their concerns regarding bikeshare and scooter share systems.

A. Market Entry Restrictions

Cities control market entry for bike and scooter share systems in different ways, depending on their goals and policy objectives. One way that cities control market entry is by issuing time-limited permits or licenses that specify the rules and requirements for operating in the jurisdiction. This approach can be used to limit the number of operators or vehicles allowed in the city, or require operators to pay fees or share data with the city. Permits can also include provisions for ensuring that the services are available and affordable for low-income or underserved communities, such as offering discounted rates, subsidies, or payment options that do not require a credit card or smartphone. For example, Washington, D.C. has a shared micromobility program that allows dockless bikeshare and e-scooter operators to function under a permit that sets caps on the number of operators and vehicles, requires data sharing and equity measures, and imposes fees and fines for non-compliance.¹³¹

Other cities take a contract approach, using the procurement process to select one or more operators through competitive bidding and granting them exclusive or non-exclusive contracts to provide bike and scooter share services. For example, Chicago awarded Lyft an exclusive contract to operate its Divvy bikeshare system for nine years after a competitive bidding process.¹³² Another example is New York City, which has a single docked bikeshare system called Citi Bike that operates under an exclusive contract with the city. The city sets the service area, fleet size, pricing, and equity requirements for Citi Bike.

Many cities have opted for short-term pilot programs to test micromobility share programs in a controlled, time-limited manner. For example, the City of Seattle launched a pilot program for dockless bikeshare in 2017, which allowed three operators to operate with unlimited fleet sizes.¹³³ Seattle has extended the bikeshare pilot program and, in 2020, began a pilot for dockless e-scooter operators.¹³⁴ The permits limit the number of operators and vehicles, require data sharing and fees, and include equity and safety requirements. The permits also allow the city to adjust the fleet sizes based on performance metrics.

These different approaches have advantages and disadvantages for cities, operators, and users. Permitting systems can give cities more control over the quality and quantity of bikeshare and scooter share services, but they can also stifle innovation and competition. According to the National Association of City Transportation Officials (NACTO), a benefit of permits is that they “allow cities to introduce regulatory structures in a faster timeframe than traditional procurement processes, while still ensuring that equipment is deployed in a controlled, organized fashion.”¹³⁵ Other benefits of a permit system include the abil-

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¹²⁷ Hacala v. Bird Rides, Inc., 90 Cal. App. 5th 292, 300, 306 Cal. Rptr. 3d 900 (2023).

¹²⁸ Id. at 300-01.

¹²⁹ Id. at 315.

¹³⁰ Id. at 300-01.

¹³¹ See D.C. CODE MUN. REGS. TIT. 24 § 3317.1; see also, D.C. DEP’T OF TRANSP., SHARED FLEET DEVICE PROGRAM https://ddot.dc.gov/page/shared-fleet-device-program (last visited June 20, 2023).

¹³² See Press Release, City of Chicago, City Council Approves $50 Million Expansion and Modernization of Divvy Bike Share System (Apr. 10, 2019), www.chicago.gov/city/en/depts/cdot/provdrs/bike/news/2019/april/city-council-approves--50-million-expansion-andmodernization-of.html.

¹³³ CITY OF SEATTLE DEP’T OF TRANSP., SCOOTER AND BIKE SHARE - DATA AND PERMIT INFORMATION (June 12, 2023), www.seattle.gov/transportation/projects-and-programs/programs/new-mobility-program/scooter-bike-share-data.

¹³⁴ Id.

¹³⁵ Supra note 78.

ity to craft metrics for success and expansion. In addition, the relative ease of revoking or declining to renew permits for noncompliance with permit terms makes them a tool “for cities to work toward policy goals—like reducing drive-alone trips or providing equitable distribution of resources for historically underserved communities—through the establishment of clear performance standard.”¹³⁶

Competitive procurements can ensure consistency and reliability of service delivery, but they can also create monopolies or oligopolies that limit user choice and increase prices. On the other hand, completely open market systems can foster innovation and competition among operators, but they can also lead to oversupply and clutter, as well as increased safety issues. Cities need to balance these trade-offs and tailor their market entry strategies to local context and objectives.

B. Safety Regulations

To mitigate the risk of injury to riders and pedestrians, states and/or municipalities may adopt ordinances or regulations aimed at ensuring public safety. The regulations and ordinances for shared micromobility systems, as a whole, primarily create a scheme of regulations for operators of such devices—that is, the companies who own and deploy them pursuant to a license from the city—but also include provisions specifically made enforceable against users.

To mitigate the risk of injury to riders and pedestrians, municipalities may adopt an ordinance or regulations requiring micromobility users wear helmets or visible reflective clothing or equipment and limiting the time and place where they may operate.¹³⁷ To protect the safety of pedestrians, many state and local laws ban the use of motorized vehicles and scooters on sidewalks. Municipalities may also impose safety, maintenance, and identification requirements on shared micromobility operators, such as:¹³⁸

• Required equipment, including front and rear lights and side view reflectors.
• Meeting or exceeding federal requirements for bicycles in private use (16 C.F.R. Part 1512). Because those requirements pertain to individually owned bikes, the increased usage levels for rental bikes may call for stronger regulations.
• Meeting or exceeding international standards for bikes (International Standards Organization 43.150 - Cycles, subsection 4210).
• Meeting or exceeding applicable National Highway Traffic Safety Administration (NHTSA) requirements for electric bikes (often used for people with disabilities).
• Requiring a minimum wheel diameter for scooters, usually ten inches in diameter.
• Setting maximum speeds the device is capable of achieving.
• Setting minimum brake standards and requiring multiple braking systems.
• Requiring that scooters be equipped with a working speedometer.
• An ordinance may also set out a preventative maintenance schedule and require companies to submit maintenance records.

Despite the lack of a universal approach to addressing regulatory issues associated with shared use micromobility, regulators are addressing legitimate safety and privacy issues while promoting innovation and entrepreneurship.

1. Protective Headgear Requirements

Regulations may require micromobility customers to use protective equipment to mitigate against risk of injury to the rider. This can include wearing helmets or visible reflective clothing. At least 25 states and Washington, D.C. have some type of helmet requirement for e-bike riders and passengers.¹³⁹ These requirements can sometimes apply to riders under a certain age, and vary by class of e-bike and jurisdiction.

Delaware, for example, has the strictest law, requiring all bicycle operators and passengers under the age of 18 to wear a helmet, and New Jersey requires helmets for operators and passengers under 17 years old.¹⁴⁰ Connecticut requires all operators and passengers, regardless of age, to wear protective headgear when riding all e-bike classes.¹⁴¹ Some states have age-based helmet requirements for electric bicycles. Florida, Georgia, Maine, and Maryland require any class of e-bike operator or passenger under 16 years of age to wear a helmet,¹⁴² while West Virginia requires helmets for those operators or passengers under 15 years old,¹⁴³ and New York requires helmets for operators and passengers under 14 years old.¹⁴⁴

Some states have specific requirements for Class 3 electric bicycles (pedal-assist bicycles with speedometers that reach up to 28 miles per hour). Alabama, California, Georgia, Louisiana, New York, Ohio, Tennessee, and Virginia require the operator and all passengers of Class 3 e-bike, regardless of age, to wear

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¹³⁶ Id.

¹³⁷ See, e.g., N.Y. VEH. & TRAF. LAW § 1281(2) (empowering localities to “regulate the time, place and manner of the operation of electric scooters, including, but not limited to, maximum speed, requiring the use of protective headgear, and the wearing of readily visible reflective clothing or material by operators of electric scooters” and “limit, prohibit the use thereof in specified areas, or prohibit entirely the use of electric scooters within such city, town, or village, provided that adequate signage is visibly posted outside the boundaries of such prohibited areas.”).

¹³⁸ Dockless Mobility Regulation, Practical Law Practice Note w-017-6569.

¹³⁹ See NAT’L CONFERENCE OF STATE LEGISLATURES, STATE ELECTRIC BICYCLE LAWS: A LEGISLATIVE PRIMER (Feb. 24, 2021), www.ncsl.org/research/transportation/state-electric-bicycle-laws-a-legislative-primer.aspx.

¹⁴⁰ DEL. CODE ANN. TIT. 21, § 4198K, N.J. STAT. § 39:4-10.1.

¹⁴¹ CONN. GEN. STAT. § 14-289k.

¹⁴² FLA. STAT. ANN. § 316.2065, GA. CODE ANN. § 40-6-296, ME. REV. STAT. TIT. 29-A, § 2063, and MD. CODE ANN., TRANSP. § 21-1207.1.

¹⁴³ W. VA. CODE § 17C-11-8.

¹⁴⁴ N.Y. VEH. & TRAF. LAW § 1238.

protective headgear.¹⁴⁵ Arkansas requires operators and passengers of a Class 3 e-bike under age 21 to wear protective headgear.¹⁴⁶ Colorado, Indiana, Michigan, New Hampshire, North Dakota, and South Dakota require helmets for those under age 18 operating or riding on a Class 3 e-bike.¹⁴⁷ Utah’s helmet requirement applies to those under 21 years of age.¹⁴⁸

To further attempt to mitigate risk of injury, Atlanta requires permitted dockless shared mobility operators to “encourage users to wear a helmet while operating a shareable dockless mobility device.”¹⁴⁹

2. Device Registration

Regulations may also require device registration, licensure, and insurance. For example, requirements may call for device serial numbers and registration tags or plates,¹⁵⁰ as well as operating licenses.¹⁵¹ States with a three-tiered classification system typically exempt e-bikes from registration, licensure, and insurance requirements to differentiate between e-bikes and other motorized vehicles such as mopeds and scooters.

For example, Idaho law differentiates between mopeds/motorcycles and e-bikes, and explicitly exempts e-bike operators from licensure, registration and titling requirements.¹⁵² New Jersey’s two-tiered classification system exempts “low-speed e-bikes,” which have a maximum operating speed of 20 miles per hour, from registration, licensure, and insurance requirements.¹⁵³ However, the law defines “motorized bicycle” as a pedal bicycle having an electric motor that propels the bicycle in excess of 20 miles per hour with a maximum motor-powered speed of 28 miles per hour.¹⁵⁴ These devices must register with the New Jersey Motor Vehicle Commission, and riders must be at least 15 years old, have a valid license, insurance and wear a helmet.¹⁵⁵

Illinois law allows local authorities to regulate the operation of bicycles, low-speed electric bicycles, low-speed gas bicycles, and require registration and licensing of the same, as well as requiring a registration fee.¹⁵⁶ Wyoming also empowers localities to enact a registration fee as part of any local ordinances governing the operation, registration and licensure of non-electric bicycles and e-bikes.¹⁵⁷ Hawaii requires e-bikes to be registered and to pay a one-time fee of $30.¹⁵⁸ Owners of non-electric bicycles in Hawaii must register their bikes as well, but the fee is $15.¹⁵⁹

3. Time and Place Restrictions

State and local jurisdictions may implement restrictions on bike and scooter share services based on space and time to achieve desired safety goals.¹⁶⁰ This can mean rules dictating whether micromobility devices may operate on sidewalks, streets, or multi-use paths, the areas in which they may or may not be allowed to operate, and the time of day in which they may operate. These types of restrictions are inconsistent among jurisdictions. According to an October 2020 report from the Insurance Institute for Highway Safety, “[p]olicies vary widely among cities on if e-scooters should use roads, sidewalks, bike lanes, or multiuse trails … and to date there has not been research evidence available to guide these decisions.”¹⁶¹

Municipal codes may control the types of vehicles and mobility devices that are allowed on sidewalks. Often the modes are treated differently. For example, under Texas law, e-scooters may operate on bike paths, sidewalks, and on streets or highways with a speed limit of 35 mph or less, but, in the interest of safety, a county or municipality may ban such operations.¹⁶² Electric bicycles, on the other hand, are generally allowed on all streets and bike paths unless otherwise posted in Texas.¹⁶³ New Jersey also allows electric bicycles and low-speed electric scooters to be operated on streets, highways, roadways, and bicycle paths.¹⁶⁴ New York City, on the other hand, does not allow e-bike or e-scooter use on sidewalks, while allowing them in bike lanes and city streets.¹⁶⁵

Cities may decide to limit the geographical areas in which users may operate shared micromobility. Using geofencing technology (the use of GPS to create “zones” where specific operating rules can apply), cities partner with service providers to determine where scooters and bikes may operate, create “slow zones,” and dictate where devices may be parked. New York City’s scooter pilot, for example, has slow zones, designated

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¹⁴⁵ ALA. CODE § 32-5A-267, CAL. VEH. CODE § 21213, GA. CODE ANN. § 40-6-303, LA. REV. STAT. ANN. § 32:204, N.Y. VEH. & TRAF. LAW § 1238, OHIO REV. CODE ANN. § 4511.522, TENN. CODE ANN. § 55-8-307, and VA. CODE ANN. § 46.2-904.1.

¹⁴⁶ ARK. CODE ANN. § 27-51-1706.

¹⁴⁷ COLO. REV. STAT. § 42-4-1412, IND. CODE ANN. § 9-21-11-13.1, MICH. COMP. LAWS SERV. § 257.662A, N.H. REV. STAT. ANN. § 265:144-A, N.D. CENT. CODE § 39-10.1-09, and S.D. CODIFIED LAWS § 32-20B-14.

¹⁴⁸ UTAH CODE ANN. § 41-6a-1505.

¹⁴⁹ CITY OF ATLANTA, GA. CODE OF ORDINANCES § 150-403(e).

¹⁵⁰ See, e.g., D.C. CODE ANN. § 50-2201.03a.

¹⁵¹ See supra note 139.

¹⁵² IDAHO CODE § 49-726.

¹⁵³ N.J. STAT. § 39:1-1.

¹⁵⁴ Id.

¹⁵⁵ N.J. STAT. § 39:4-14.3.

¹⁵⁶ 625 ILL. COMP. STAT. ANN. 5/11-208.

¹⁵⁷ WYO. STAT. ANN. § 31-5-109.

¹⁵⁸ HAW. REV. STAT. ANN. § 249-14.

¹⁵⁹ Id.

¹⁶⁰ See, e.g., N.Y. VEH. & TRAF. LAW § 1281(2).

¹⁶¹ IIHS, SEVERITY OF E-SCOOTER RIDER INJURIES ASSOCIATED WITH TRIP CHARACTERISTICS (Oct. 2020), www.iihs.org/api/datastoredocument/bibliography/2216.

¹⁶² TEX. TRANSP. CODE § 551.352. See, e.g., CITY OF PEARLAND, TEX. CODE OF ORDINANCES § 29-13 (banning the operation of “motor assisted scooter[s] or minimotorbike[s] on any sidewalk, right-of-way, roadway, street or highway, including private roads, within the City of Pearland.”); CITY OF SUGAR LAND, TEX. CODE OF ORDINANCES § 5-113 (prohibiting motor-assisted scooters on streets with speeds over limit of 20 mph and on sidewalks).

¹⁶³ TEX. TRANSP. CODE § 551.106.

¹⁶⁴ N.J. Stat. § 39:4-14.16.

¹⁶⁵ N.Y.C. DEP’T OF TRANSP., ELECTRIC BICYCLES AND MORE, www.nyc.gov/html/dot/html/bicyclists/ebikes.shtml.

parking zones, and non-riding and parking zones that are enforced through geofencing.¹⁶⁶ While uncommon with most bike and scooter share programs, Atlanta, Georgia implemented a nighttime riding ban for rented scooters/e-bikes, prohibiting renting any devices from 9:00 p.m. to 4:00 a.m.¹⁶⁷ Atlanta’s decision came after four riders were killed by drivers in 2019.¹⁶⁸

4. Device Standards

The frequent use of shared bikes and scooters may warrant higher safety standards for such devices than those that apply to personal devices. Some cities require shared e-bikes or e-scooters have certain equipment, including front and rear lights, side view reflectors, a working speedometer; the cities also set brake standards and require multiple braking systems. Cities may also set maximum speed limits that devices are capable of reaching and require companies set a preventative maintenance schedule and submit maintenance records.

It is common for states to require electric bikes meet federal safety requirements. For example, Arkansas, California, Illinois, Louisiana, North Dakota, and Texas require electric bicycles to comply with the equipment and manufacturing requirements for bicycles adopted by the United States Consumer Product Safety Commission, 16 C.F.R. part 1512.¹⁶⁹ These states also require that the electric motor disengage or cease to function when the brakes are applied.¹⁷⁰

Many states regulate e-scooters as generally street-legal while restricting their speed. Utah, for example, allows e-scooters to operate on any roadway including highways, but the state restricts their speed to fifteen miles per hour.¹⁷¹ Other states prohibit e-scooter use on highways. Texas and New York, for example, allow e-scooters to operate only on roadways where the speed limit is 35 miles per hour or less.¹⁷² California has similar restrictions on scooters, limiting roads on which they may operate to those with speed limits 25 miles per hour, while capping speeds of motorized scooters at 15 miles per hour.¹⁷³ The City of Atlanta requires that shareable dockless mobility devices must not alone be capable of propelling the device in excess of 15 miles per hour.¹⁷⁴

5. Parking Restrictions

Cities must decide where is appropriate and safe for shared micromobility companies and customers to leave devices when not in use. According to NACTO, “cities are implementing context-sensitive zonal regulations to ensure that sidewalks, trails, and bike lanes are clear of discarded micromobility devices.”¹⁷⁵ Designated shared micromobility parking zones on streets or sidewalks, “corrals,” and docking stations are common.

Dock-based systems like New York City’s Citi Bike require trips to begin and end at static stations, while dockless systems do not have a fixed home locations and are dropped off and picked up from certain locations. Dock-based vehicles are consistently available at the docking stations, ensuring a reliable supply for users, while dockless shared mobility systems offer greater flexibility and convenience. However, since dockless systems rely on users to responsibly park the vehicles in appropriate areas, there can be instances of misplaced or poorly parked vehicles, which may cause inconvenience for other users or pedestrians. Geofencing is often used to designate parking areas for dockless systems, but geofencing can be inaccurate.¹⁷⁶ Dockless systems can alternatively equip devices with locks that can be used on existing bike parking infrastructure.

To mitigate risk of dockless bikes and scooters blocking and obstructing sidewalks, cities may require devices be locked to racks while maintaining an unobstructed walkway.¹⁷⁷ For example, New Jersey allows electric bicycles and low-speed electric scooters to be parked on a sidewalk as long as it does not impede the normal movement of pedestrian or other traffic.¹⁷⁸ Atlanta, Georgia requires dockless devices be parked upright at all times in a designated parking corral or dock.¹⁷⁹ If not in a designated corral or dock, devices may be parked on the sidewalk in a bike rack, against a building, or at a curb, in such manner as to afford the least obstruction of pedestrian traffic and provide a minimum of five feet clear for pedestrians.¹⁸⁰ To enforce these parking restrictions, operators are required to have contact information and unique company-specific device identifiers on all devices for relocation requests. Operators must monitor and document relocation requests and responses 24/7.¹⁸¹ Operators are responsible for relocating improperly parked devices without notice from the city. Failure to do so could result in the city

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¹⁶⁶ N.Y.C. DEP’T OF TRANSP., SHARED E-SCOOTER PILOT PRESENTATIONS AND MAPS, https://nycdotscootershare.info/maps_plans.

¹⁶⁷ CITY OF ATLANTA, GA., Admin. Reg., Sharable Dockless Mobility Device, Sec. VII, Administrative Zones (Apr. 5, 2021), available from www.atlantaga.gov/government/departments/transportation/strategyand-planning/office-of-mobility-planning/shareable-docklessmobility-devices.

¹⁶⁸ A. Short, Atlanta Bans E-Scooters at Night after Drivers Kill Four Riders, STREETSBLOG, (August 2019), https://usa.streetsblog.org/2019/08/12/atlanta-bans-e-scooters-at-night-after-drivers-kill-four-riders.

¹⁶⁹ ARK. CODE ANN. § 27-51-1704, CAL. VEH. CODE § 24016, 625 ILL. COMP. STAT. ANN. 5/11-1517, LA. REV. STAT. ANN. § 32:204, N.D. CENT. CODE § 39-10.1-09, and TEX. TRANSP. CODE § 664.003.

¹⁷⁰ See also S.D. CODIFIED LAWS § 32-20B-11.

¹⁷¹ UTAH CODE ANN. §§ 1105 and 1115.

¹⁷² TEX. TRANSP. CODE § 551.352; N.Y. VEH. & TRAF. LAW § 1282.

¹⁷³ CAL. VEH. CODE §§ 21235 and 22411.

¹⁷⁴ CITY OF ATLANTA, GA. CODE OF ORDINANCES § 150-403(e).

¹⁷⁵ NACTO, SHARED MICROMOBILITY PERMITTING, PROCESS, AND PARTICIPATION (Dec. 2022), https://nacto.org/shared-micromobilityworking-paper/.

¹⁷⁶ P. White, Good (Geo)Fences Make Good Neighbors, LINK, (Aug. 26, 2020), https://link-city.medium.com/good-geo-fences-make-good-neighbors-5af63b6a2843.

¹⁷⁷ See e.g., 66 D.C. REG. 7636 (June 28, 2019) (D.C. Bill B23-0359).

¹⁷⁸ N.J. Stat. § 39:4-14.16.

¹⁷⁹ CITY OF ATLANTA, GA. CODE OF ORDINANCES § 150-404.

¹⁸⁰ Id.

¹⁸¹ Id.

reducing the number of devices allowed under the permit or revoking it all together.¹⁸² The city reserves the right to cite, impound, store, and dispose of improperly parked permitted devices at the operators’ expense.¹⁸³

Parking management plans outline device parking strategies to ensure devices are parked correctly and in accordance with local regulations. These strategies can be developed in collaboration with communities and service providers, and will ultimately determine how providers will deploy geofencing capabilities, communicate with customers about appropriate parking locations and parking devices correctly, and detect and move improperly parked devices.

C. Enforcement

Enforcement of micromobility regulations requires collaboration and coordination among the various stakeholders, including regulators, transit agencies, law enforcement agencies, service providers, and users. Enforcement of micromobility laws can be done by various agencies and actors, such as law enforcement, police officers, traffic officers, and DOT enforcement officers.

Enforcement requires mechanisms to monitor compliance with rules, regulations, and/or contract terms.¹⁸⁴ Regulators use various tools and strategies to enforce compliance, such as data analysis, audits, inspections, fines, penalties, incentives, and public engagement. Enforcement can also involve educating users and motorists about the laws, issuing warnings or citations for violations, and penalties for non-compliance. The National Association of City Transportation Officials (NACTO) issued Shared Micromobility Guidelines, which recommend that regulators clearly delineate performance measures to assess operator performance and compliance, including in the following areas:¹⁸⁵

• Compliance with restricted access/prohibited areas
• Parking, distribution, and rebalancing requirements
• Maintenance/equipment standards
• Customer service levels outreach
• Data integrity
• Fleet size

Enforcement regulations that provide for the issuance of summonses and tickets to permit holders and the imposition of fines and other penalties, including suspension or revocation of permits, are traditional and common approaches to enforcement. For example, Atlanta vests enforcement authority in the Department of Transportation, which has the power to revoke or suspend a shareable dockless permit and/or issue fines of $1,000 per day for each violation until compliance.¹⁸⁶ If an operator’s permit is revoked, the operator is barred from reapplying for a new permit for 12 months after all of the operator’s dockless mobility devices are removed from the City of Atlanta’s right of way.¹⁸⁷

According to NACTO, “[s]ome cities have found success in the use of temporary permit suspensions (between 48-72 hours) and fleet size reductions in place of fines for non-compliance issues.”¹⁸⁸ For example, the City of Denver Department of Transportation and Infrastructure (DOTI) requires shared micromobility system operators to ensure that a minimum of 30 percent of their fleet is distributed to areas of the city with low-vehicle ownership and high transit ridership on a daily basis.¹⁸⁹ To enforce these rebalancing requirements, DOTI uses a system called Ride Report to monitor distribution data, and operators that fail to meet the minimum requirements may have their fleet size reduced as a penalty.¹⁹⁰

A common approach for regulatory enforcement is to delegate it to private operators and hold operators responsible for rider misconduct. Regulators will specify rules that depend on user behavior, such as where to park and ride, and rules that focus on fleet operations, such as vehicle maintenance, rebalancing, and user outreach and communication.¹⁹¹ One of the issues related to user behavior is the parking of vehicles, which can affect the safety and accessibility of public spaces. Operators have the authority to impose fines or penalties on the riders who violate the parking rules, as stated in their user agreements. To promote compliance and establish a clear record of vehicle ownership and location, some jurisdictions and many operators require users to take a picture of their vehicle in a legal, upright position at the end of a ride.¹⁹²

For example, the City of Denver holds the vendors responsible for rider misconduct, such as riding on sidewalks and obstructing sidewalks. The not-for-profit Better Bikeshare Partnership explains, “it’s on Lyft and Lime to make things right before they’re penalized. For every complaint or breach of contract, operators have two hours to respond before getting hit with a violation. If either company racks up 10 violations in a 90-day period, it loses 10% of its fleet for 30 days. With that in mind, both operators have agreed to fund and partner with the city on a large-scale engagement plan to educate the populace on proper riding and parking etiquette.”¹⁹³

Enforcing micromobility regulations is a complex and challenging task that requires collaboration and coordination among various stakeholders. Regulators need to establish clear and measurable performance measures for operators, and use various tools and strategies to monitor and enforce compliance.

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¹⁸² Id.

¹⁸³ Id.

¹⁸⁴ Supra note 78 at 12.

¹⁸⁵ Id.

¹⁸⁶ CITY OF ATLANTA, GA. CODE OF ORDINANCES § 150-402.

¹⁸⁷ Id.

¹⁸⁸ Supra note 184.

¹⁸⁹ Kiran Herbert, Denver’s New Shared Micromobility Plan, BETTER BIKE SHARE PARTNERSHIP (June 9, 2021, https://betterbikeshare.org/2021/06/09/denvers-new-shared-micrombility-plan/.

¹⁹⁰ Id.

¹⁹¹ See Murphy, supra note 68.

¹⁹² Id.

¹⁹³ Kiran Herbert, Denver’s New Shared Micromobility Plan, BETTER BIKE SHARE PARTNERSHIP (June 9, 2021), https://betterbikeshare.org/2021/06/09/denvers-new-shared-micrombility-plan/.

Operators need to follow the rules, regulations, and contract terms, and provide safe and reliable services to users. Users need to be aware of and respect the laws, and use micromobility devices responsibly and courteously. By working together, stakeholders can ensure that micromobility systems are integrated into the urban transportation network in a safe, efficient, and equitable manner.

D. Insurance

Transit agencies and cities looking to deploy shared micromobility should pay attention to insurance policies affecting these services. Generally, scooter and bike riders are not insured for injuries to persons or damages to property that they cause. While an individual’s personal/private health insurance will generally cover their own injuries from a micromobility device accident, personal auto insurance policies often exclude these devices because they do not meet the definition of an auto within the policy. Standard rental agreements for shared micromobility operators do not provide insurance coverage for injuries to persons or damages to property caused by the rider.

Municipalities generally require shared micromobility companies to carry insurance. For example, after numerous e-scooter operator deaths in Atlanta, the city now imposes insurance and indemnification requirements on shared micromobility companies as a condition of obtaining a permit to operate.¹⁹⁴ In Denver, e-scooter rental companies are required to carry a minimum of $1 million liability insurance to cover property damage, and $2 million to cover personal injuries, and they must name “The City & County of Denver, its Officers, Officials and Employees, and The Colorado Department of Transportation with it’s [sic] Officers, Officials and Employees” as additional insureds.¹⁹⁵

While micromobility companies are typically required to extend coverage to the cities where they operate, they are rarely required to extend coverage to riders. Standard bikeshare and e-scooter rental agreements do not provide insurance coverage to riders. Individual user rental agreements range from being silent on insurance, to requiring the user to assume all the risk and to agree to defend and indemnify the rental company if an accident occurs, to informing renters that their automotive insurance policies may not provide coverage for accidents involving or damage to the scooter.¹⁹⁶ A few cities, including San Francisco and Santa Monica in California, require companies to carry insurance for injuries to persons and/or damages to property caused by riders.¹⁹⁷ San Francisco requires e-scooter rental companies to carry “[a]dequate insurance . . . for each Powered Scooter ridden, parked, or left standing or unattended on any sidewalk, Street, or public right-of-way under the jurisdiction of the SFMTA or Public Works, and for each user using the Powered Scooter during the period of use.”¹⁹⁸ In certain locations, micromobility companies may be required to provide personal accident coverage and/or rider liability coverage for specified damages if the rider fully complies with, and was in full compliance with, the user terms and conditions at the time of the incident.¹⁹⁹

Riders’ own personal auto liability insurance policies will not provide coverage for them either. Most auto policies provide liability coverage for “autos” and specifically exclude coverage for vehicles, owned or rented, with fewer than four wheels.²⁰⁰ Homeowner insurance may not provide coverage for accidents caused by an insured while riding an electric bike or scooter, either, because such policies typically excludes coverage for any “motor vehicle” or “motorized land vehicle.”²⁰¹ Depending on the policy’s wording, homeowner’s insurance might not cover electric bike or scooter crashes if they fall within the policy’s definition of a motor vehicle.

The types and amounts of insurance will depend on the potential types and amounts of liability exposure. A general liability and premises and operations coverage may be appropriate for use of the right-of-way by bike or scooter users. Insurance requirements could make micromobility cost prohibitive. Insurance requirements will make providing micromobility more costly, which would likely increase consumer costs to use such service.

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¹⁹⁴ Karen Johnston, et al., Regulating Micromobility: Examining Transportation Equity and Access, 4 J. COMP. URB. L. & POL’Y 685, 695 (2020).

¹⁹⁵ 54 TORT & INS. L.J. 579; Denver Dockless Mobility Pilot Permit Program Overview, (June 2018), www.denvergov.org/content/dam/denvergov/Portals/705/documents/permits/Dockless-Mobility-Pilot-Permit-Program-Overview_June2018.pdf (citing City & County of Denver Public Works Dep’t Transit Amenity Program Rules & Regulations § II.A.B.(a)).

¹⁹⁶ See, e.g., Bird Rental Agreement, Waiver of Liability and Release, § 1.12, www.bird.co/agreement/ (accessed Aug. 31, 2023) (“YOUR HOMEOWNER’S, RENTER’S, OR AUTOMOBILE INSURANCE POLICIES MIGHT NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING THE USE OF THIS DEVICE. TO DETERMINE IF COVERAGE IS PROVIDED YOU SHOULD CONTACT YOUR INSURANCE COMPANY OR AGENT. TO THE EXTENT YOU HAVE AUTOMOTIVE OR ANY OTHER INSURANCE THAT WOULD COVER ANY CLAIMS, YOU AGREE THAT SUCH INSURANCE WOULD BE PRIMARY AND NON-CONTRIBUTORY”).

¹⁹⁷ See SAN FRANCISCO MUN. TRANSP. AGENCY (SFMTA), Board of Directors, Resolution No. 180501-073, www.amlegal.com/pdffiles/sanfran/MTARes180501-073.pdf; Santa Monica Shared Mobility Pilot Program, www.smgov.net/uploadedFiles/Departments/PCD/Transportation/Shared%20Mobility%20Selection%20Committee%20Memo_09072018_Final.pdf.

¹⁹⁸ See SFMTA Board of Directors Resolution No. 180501-073, § 916(d)(6)(B) (May 1, 2018), www.sfmta.com/sites/default/files/reports-and-documents/2018/05/5-1-18_item_11_pilot_scooter_share_program_permit_resolution.docx_.pdf.

¹⁹⁹ See, e.g., Lime User Agreement (updated June 23, 2023), www.li.me/user-agreement (“For certain Products and in certain locations, we may provide personal accident coverage and/or rider liability coverage for specified damages arising from your use of a Product if you fully comply with, and was in full compliance with, these Terms and all applicable insurance terms and conditions here at the time of the incident.”).

²⁰⁰ 54 TORT & INS. L.J. 579.

²⁰¹ Id.

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²⁰² See, e.g., Lime User Agreement § 2, (updated June 23, 2023), www.li.me/user-agreement, (“[Y]ou, on behalf of yourself, your personal representatives and your heirs, hereby EXPRESSLY AGREE TO WAIVE AND RELEASE ALL RELEASED PARTIES FROM ANY AND ALL CLAIMS (INCLUDING THOSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY AND/OR ANY OTHER GROUNDS), INCLUDING WITHOUT LIMITATION CLAIMS FOR OR RELATING TO ANY ACCIDENT, PERSONAL INJURY, PROPERTY DAMAGE, DEATH OR DISABILITY THAT YOU MAY SUFFER AS A RESULT OF USING OUR SERVICES OR PRODUCTS,”); Bird Rental Agreement, Waiver of Liability and Release, § 15 (“Rider agrees to fully release, indemnify, and hold harmless Operator, Technology Services Provider and all of its and their owners, managers, affiliates, employees, contractors, fleet management service providers, officers, directors, shareholders, agents, representatives, successors, assigns, and to the fullest extent permitted by law any Municipality (including its elected and appointed officials, officers, employees, agents, contractors, and volunteers) in which Rider utilizes Services, and every property owner or operator with whom Operator has contracted to operate Services and all of such parties’ owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, and assigns (collectively, the “Released Persons”) from liability for all “Claims” arising out of or in any way related to Rider’s use of the Services, Vehicles, App, or related equipment, including, but not limited to, those Claims based on Released Persons’ alleged negligence, breach of contract, and/or breach of express or implied warranty, except for Claims based on Released Persons’ gross negligence or willful misconduct. Such releases are intended to be general and complete releases of all Claims. Notwithstanding any provision in this section, Rider’s indemnification obligations shall not extend to any Claims, litigation, or settlement that arise solely from the negligence or willful misconduct by Operator”).

²⁰³ Id.

²⁰⁴ Conway v. O’Brien, 312 U.S. 492, 495, 61 S. Ct. 634, 636 (1941) (Citing the accepted Vermont definition of gross negligence as, “Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. It amounts to indifference to present legal duty, and to utter forgetfulness of legal obligations so far as other persons may be affected. It is a heedless and palpable violation of legal duty respecting the rights of others. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure.”).

²⁰⁵ RESTATEMENT (SECOND) OF TORTS § 500.