Jesse Halfon is an attorney in the automotive and products liability practice in Ann Arbor, Michigan.
In 2018, in what appeared to be more of a sociology experiment than a transportation innovation, rentable electric scooters landed on American streets. These mobile memes swiftly spread nationwide, captivating and confounding citizens, the media, and government officials alike. Some places welcomed the curious new arrivals; other city representatives decried scooters as interlopers and subjected them to outright bans and impoundment.
Dockless scooters continue to expand into new markets, and their rollouts are now often coordinated with local transportation authorities. But enormous legal confusion around these devices remains. A Consumer Reports survey found more than one-in-four e-scooter users were uncertain of the traffic laws they should follow. Part of the problem is that there’s no consistent set of laws or social norms for electric scooters. Until recently, laws relating to “micromobility” vehicles like electric scooters, skateboards, hoverboards, and electric unicycles were rarely enforced and largely unknown (if they even existed). Some states still categorize all such vehicles as toys.
Cities may have originally been caught off guard by unannounced deployments of e-scooters, but they’re responding now. At the beginning of 2019, at least 44 e-scooter bills were introduced in 26 states. Needless to say, this remains an area of the law in flux. And riders, caught between cities looking to experiment with a cheap last-mile solution and companies seeking to insulate themselves from liability, are in a vulnerable position.
Before you can even kick-start that scooter, you’ll have legal obligations to the scooter company by “choosing” to accept the terms of their user agreement. These rental agreements typically begin with the gentle suggestion that you “PLEASE READ EACH PROVISION OF THIS AGREEMENT CAREFULLY.” That’s no small task: One agreement tips the literary scales at a hefty 18,000+ words.
These user agreements include all of the corporate contract classics: an acknowledgement that you will follow traffic laws, consent to record you and use your image for promotion, forced arbitration, and a broad waiver of liability against the company for basically anything that could possibly occur while riding a scooter.
Navigating this legal terrain can be complicated. Between state laws, local vehicle codes, and agreements between cities and scooter providers, it’s still often unclear whether electric scooters are street legal at all. The good news is that if you live in a city where e-scooters are currently deployed, you can be confident that the city either explicitly or tacitly approves of their use. So even if they technically violate your state or local traffic code, you can take your chances and hop on. Worst-case scenario, you’ll end up with a minor traffic citation and a good story to tell.
But slow down there easy rider! You’ll still need to know where can you legally ride. Remarkably, cities have formed a near unanimous consensus. With few exceptions, cities have deemed e-scooters vehicula non grata on sidewalks and require that they be operated on regular roads or bike paths. This leaves scooter patrons at an uncomfortable crossroads.
The vast majority of e-scooter riders are casual users who don’t own a scooter or appreciate the dangers of riding one. All riders, particularly those who are inexperienced, ought to focus on maintaining balance, learning to negotiate the throttle and brake, and watching for literal bumps in the road. Riding an electric scooter alongside two-ton SUVs is a handful even for seasoned riders; forcing new riders into mixed traffic is downright hostile.
The risks of riding an e-scooter are not insignificant. A CDC study of dockless e-scooter accidents found that riders suffered an injury for every 5,000 miles ridden.* Nearly half of those were head injuries, and a third were to first-time riders. Bike infrastructure can help, but only if it’s separated from traffic. Recent research has shown that paint-only bike lanes can be more dangerous for cyclists in certain situations. (And a few lines of paint won’t save you if your scooter hits a pothole and sends you tumbling.)
Many e-scooter riders would be wise to ignore the sidewalk ban out of concerns for self-preservation alone. But just because you’re indulging in some healthy civil disobedience doesn’t mean you have to be a complete derelict: Avoid streets with high pedestrian traffic, go slow, and only ride on the sidewalk when you genuinely feel unsafe on the road.
New mobility modes and business models mean new challenges for vendors and for cities managing them. As cities struggle to define new micromobility laws, private companies have filled this legal void with their own rules and regulations. The standard scooter contract provisions include a minimum age requirement, a maximum weight limit, and an acknowledgement that users are competent riders. So far, companies in the highly competitive scooter market haven’t been strictly enforcing these terms. Notably, all of the shared scooter providers suggest that riders wear a helmet. But this mandate is more honored in the breach than in the observance, and e-scooter companies have been happy to look the other way, even sharing images of helmetless users in their social media accounts.
Click-through agreements are so commonplace in our digital lives so as to be virtually invisible. But these non-negotiable quasi-contracts are particularly troublesome when dealing with physical products that can cause physical harms. First-time dockless scooter users are expected to hop on, steer onto the roadway, hit the throttle, and go. But these users have no access to an owner’s manual and have no real opportunity to test or vet these vehicles before they hit the road. When injuries do occur, riders are often left with little recourse.
As with cities’ struggles to regulate the sharing economy for services like Uber and Airbnb, part of the problem is philosophical. Indeed, the foundation of English property law is rooted in concepts of ownership and possession. The classic owner’s privilege is a right of exclusion which entitles an owner to keep others from accessing their land or personal property. By extension of the right to exclude, owners derive other property rights and privileges like the right to peacefully enjoy their property, profit from rents, and transfer to heirs after death.
The sharing economy disrupts this entire legal landscape. Part of the luxury of riding a shared scooter or bike is freedom from ownership. Using bikeshare relieves the rider of having to worry about lugging their bicycle up a flight of stairs, carrying a lock, or parking their vehicle in a safe location. But with the benefits of a sharing economy come new problems. A world where fewer people own bikes or scooters is also a world where fewer people own or carry helmets. New mobility services and new business models have challenged cities attempting to manage them using the traditional legal infrastructure. Airbnb may just be a digital version of a sublease; Uber a taxi company with an app; and scooter-share a decentralized rental shop. But those minor distinctions have major policy consequences.
Some cities have started to innovate to meet the challenges of the access economy. For example, LADOT created a first-of-its-kind city data collection called the Mobility Data Specification (MDS), to help steer the city’s multi-modal transportation policy. But with big data comes big responsibility, and cities will have to prove that they have the technical capability to manage the risks associated with large-scale data collection in an era of growing privacy and security concerns. Private companies and privacy advocates have already begun to mount legal challenges to MDS, creating a new municipal turf war which will shape how cities can manage new mobility businesses.
Today, micro-vehicles not only serve adults, but also the promise of a fluid mobile society where urbanites seamlessly traverse their environment free of the burdens of car or bike ownership. It’s still not clear if dockless scooters can succeed as a profitable business. But at a minimum, the micromobility revolution has forced cities to reconsider how to plan for and prioritize different modes of travel. If that ends up being the electric scooter’s legacy, it will have been worth the ride.
*CORRECTION: An earlier version of this article included an inaccurate comparison of the rate of scooter injuries to bicycle-related injuries.