Micromobility and Liability

Recently, I was asked to give a presentation to the folks at Arlington Transportation Partners on issues related to micromobility and liability. The sudden presence of electric scooters, electric skateboards, and all manner of micromobility devices on our streets has raised all kinds of issues and concerns with people. Are these exciting technologies really safe? Who is liable if there is a crash involving a scooter and a car? A scooter and a scooter? A scooter and a pedestrian? A scooter and a bike?

Watch my video and read the transcript of below to learn more about this important topic.

In thinking about these scenarios, it got me thinking about larger and deeper issues. Namely, is our current legal framework adapting to these new modes of transport? Are state and local governments keeping pace with needed regulation? What about the courts and the law? Are they keeping up?

In terms of framework, it’s important to remember that the law always lags behind technology. Whether it’s regulating internet access, genetically modified food, human cloning, or electric scooters on our streets, the law will always be playing catch up. And that’s a good thing, because it often takes time to assess how and why new technologies should be regulated. Assessing the pros and cons of new technologies in our society generally should always be done carefully, with input welcomed by all stakeholders. Otherwise, we risk stifling innovations that truly have the potential to make our lives better. And if we do decide to regulate, or even prohibit new technologies, taking the time to do it right ensures that these important decisions are made with good data, carefully evaluated, from reliable sources. 

In that context, I am glad to see that some jurisdictions, including Arlington County, are undertaking well designed demonstration projects to carefully assess new micromobility devices (mainly electric scooters) before making final decisions about how best to regulate their presence and availability.

There is always tension between taking too long to regulate, and overdoing it too early. In my view, Arlington’s nine month demonstration program strikes a reasonable balance, and should serve as a model for other jurisdictions. To learn more, check out https://transportation.arlingtonva.us/scooters-and-dockless-bikeshare/.

Back to liability. The current framework based on the legal doctrine of negligence is a good (though never perfect) system, and in my view perfectly capable of adapting well to new transportation options. It’s already happening, as scooter riders have been injured (and in at least three reported cases in the U.S. so far, killed) by collisions with motorists.

A big – no huge – issue, however, is insurance. If a car negligently inures a scooter rider, the driver’s auto insurance is available to compensate the rider, assuming the level of coverage is enough. (And that is a big “if” by the way.) But what if a scooter collides with and injures a pedestrian? Unless the “at fault” scooter rider has homeowners or renter’s liability insurance, there may be no insurance at all to compensate the person injured for their medical bills, lost wages, and pain and suffering. The same is true if the scooter hits another scooter, or bicycle, or even causes an accident involving automobiles. No coverage, no compensation. Scary.

Insurance is a boring topic and until you need it. In Virginia, the state required minimum liability coverage for drivers is $25,000 (though even that requirement can be waived if the driver pays a $500 annual fee). As any personal injury lawyer will tell you, that is not nearly enough to compensate someone who is badly injured. And despite the law, many drivers (as many as one in five according to insurance industry data), are driving with no insurance at all.

So what do we do as a community? How do we protect ourselves?

Here’s an idea. With regard to scooters, I think all companies providing these devices for rent should be required by law to provide $1 million in liability coverage to protect anyone injured by a negligent scooter rider. Conversely, they should also provide $1 million in what is called “uninsured / underinsured” liability coverage. This is referred to as “UIM” coverage, and it will protect the scooter rider if they are hit by a negligent motorist with too little or no insurance coverage. The cost of this coverage should be “baked in” to the cost of the rental, and apply seamlessly every time the scooter is used. No opting in, no opting out. It’s just there.

This is not a radical concept, considering that both Uber and Lyft already provide $1 million in liability coverage every time their drivers activate their apps. It’s just there, protecting anyone who is hit by a negligent Uber or Lyft driver, and the cost is built into the fare. If it’s a good idea for Uber and Lyft, I think it’s a good idea for Bird, Lime, and all the other scooter rental companies in the market. 

Risks have costs, and mandatory insurance coverage for rental scooters at appropriate levels is a sound way to allocate those costs. Until we have the infrastructure solutions to eliminate crashes entirely, we owe it to ourselves and our community to implement sound regulations that minimize risks, and take care of people when the worst happens.