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With a new e-scooter company claiming stake on Austin sidewalks seemingly every other week, it’s nearly impossible to find yourself downtown without a smiling face zooming past your windshield while you crawl through your commute. As envious as we may be watching these scooter-ists skip the traffic, how safe is it to scan one with your phone and scoot into the sunset? The Centers for Disease Control & Prevention are wondering the same thing as a result of a history of injuries resulting in the rise of law firms specializing in scooter injury law.

According to CNBC, the first federal-agency study of electric scooter accidents is underway. Lead by the CDC at the request of both the Austin Transportation Department and Austin Public Health, the study is focusing on injuries classified as “severe” that happened in Austin between September and November of 2018. During that time, Austin-Travis County Emergency Medical Services recorded 165 patients with scooter-related injuries, reported by Austin-American Statesman.

While not all 165 patients admitted during that time had “severe” injuries, the push for a CDC report is all the more timely in light of a recent lawsuit filed by Jeremiah Mahoney of Austin who reports to the Austin-American Statesman of being thrown from a Lime scooter after the wheels automatically locked during his ride, in addition to the unfortunate death of 21-year-old Mark Sands, a UT foreign-exchange student who was also riding a Lime scooter when he was killed after being hit by a car.

These e-scooter accidents aren’t confined to just Austin city limits, with reports coming in from all over the country, and even the world, of injuries related to the use of the scooters.

“They [e-scooter users] are getting hit by cars, they are hitting pedestrians, they’re having all manner of accidents that shouldn’t be occurring,” said Todd R. Falzone, personal injury lawyer, to The Washington Post regarding a negligence lawsuit filed by Tracy Jordan against Lime scooters after her daughter, Ashanti Jordan, was hit by a car while riding one of the companies scooters in Fort Lauderdale, Florida.  “Unfortunately, Ashanti is going to pay for this with her life,” said Falzone.

As reported by The Washington Post, Ashanti wasn’t wearing a helmet when a collision with a car threw her approximately 100 feet from her scooter. She sustained broken bones, fractures, and ultimately a brain injury that has left her in an unresponsive coma.

There is a certain amount of risk involved any time you hop on one of these scooters, especially without a helmet, but in terms of liability who is ultimately responsible for any injuries that may occur while riding one in downtown Austin? As of now, the answer is a little complicated.

Lime’s website states under their “Rules & Regulations” that a helmet is required to ride their scooters, yet statistics from peer-reviewed medical journal JAMA Network Open are showing that in almost all instances of a user taking a trip to the hospital for a scooter-related injury, they weren’t wearing a helmet. The report takes its sample from users in California and states, “In this study of a case series, 249 patients presented to the emergency department with injuries associated with electric scooter use during a 1-year period…and only 4.4% of riders documented to be wearing a helmet,”.

Additionally, under a “Safety” tab on Lime’s website they address helmet laws more directly by saying, “All cities are different regarding helmet laws and electric assist vehicles. Please consult your local DOT for specific information on helmet law where you’re riding.”.

Lime’s user agreement, that everyone who wants to scan a scooter must read and agree to before they’ll be allowed to ride, has several clauses in place that rid them of most liability, and places that assumption of risk on the rider. This includes the failure of the rider to wear an approved helmet, any wrongdoing from a 3rd party, and simply using any of their products or equipment in the first place.

When abiding to the user agreement, the accident that resulted in Ashanti Jordan’s head injuries that left her in a coma involved the lack of a helmet, in addition to a 3rd party collision with a motorist, that would technically leave Lime with no liability. However, her lawyer is arguing company negligence, stating that the app directs riders to take the scooters into the street, rather than the sidewalk, which depending on where you are, could be illegal.

The Washington Post reports that operating scooters in the street is illegal in Florida, despite the instructions from Lime.  In Austin, the laws do allow users to ride the e-scooters on the sidewalks and anywhere else bicycles are allowed, including streets, but have specific streets (6th, 5th, and streets around the capitol building like 15th, Colorado St. and Congress Ave, to name a few) where the Austin-American Statesman reports restricted sidewalk access, requiring scooter-ists to move to the street.

Negligence of the scooter companies is something that aforementioned Jeremiah Mahoney, who was thrown from his Lime scooter in downtown Austin this February, is also claiming in his lawsuit, according to Austin-American Statesman. He says to the Statesman, “That thing could have malfunctioned under any circumstance at any location, and who knows what could have happened?”.

Jeremiah’s experience isn’t the first report of malfunctioning Lime scooters, and has been an issue for the company in the past.

In 2018, Lime had to remove one of their scooter models, Chinese-manufactured Okai scooters, from every city they had a presence in due to accounts of the scooters breaking apart, reported The Washington Post.

In fact, The Washington Post reports a Lime mechanic who helped maintain the scooters out of California was finding cracks along the baseboards after only a few days of them being out on public streets. In addition, the mechanic offered video to the publication of employees testing the scooters where they broke in half after a couple small jumps, and noted that another mechanic found the now-recalled scooter could snap even when riders weighed less than 150 pounds. While these problematic scooters are no longer scooting around public streets and sidewalks, the Lime user agreement has language in place to protect them from future scooter malfunctions, placing that risk and liability, once again, on the rider.

The “Additional Terms of Use” clause in the user agreement requires each rider to agree that they conducted a basic safety inspection of the scooter before riding, including “trueness of the wheels”, “safe operation of all brakes and lights” and “any sign of damage…or other mechanical problem or maintenance need”.

It is as unlikely that a potential rider would read through the entirety of the user agreement as it is that the average rider would happen to have a helmet on them. It’s also hard to tell if the average rider would have enough mechanical knowledge about the scooter that they’d be able to do a thorough safety check of brakes, wheels or any other mechanical problem to prevent injury. This is a large request of the user, and places almost all liability on the rider if any injury or other accident occurs due to a faulty or poorly maintained scooter.

Despite the issues Lime has had in the past year, according to CNBC they have said several times that they’re concerned with user safety, and both Lime and Bird, another prominent e-scooter company, say they support the research the CDC is doing in Austin and want to help how they can.

“We’re taking this issue seriously. We’re doing all that we can to work with cities, education and technology to address these accidents and it’s encouraging the medical community is as well,” said a Lime spokesperson in a statement to CNBC. “We absolutely support the CDC study and would love to contribute in any way through data sharing.”

Lime is making an effort to support a safer user experience through their Respect The Ride safety campaign that encourages awareness and asks riders to commit to safety and education by taking the Respect The Ride pledge. They encourage abiding by all traffic laws, riding within designated areas only, being aware of other motorists/riders/pedestrians, in addition to always wearing a helmet when riding. Lime also pledged to distribute over 250,000 helmets worldwide to support usage and increase rider safety.

The company’s 2018 Year End Report goes into more detail about the safety campaign and speaks on several benefits the micro mobility of Lime scooters bring to participating cities.

Lime reports that Austin had approximately 275,000 riders last year, with about 40 percect of them reporting they replaced a trip they’d normally use a personal car, or a rideshare service for with a scooter, and 38 perfect reported they used a scooter to commute to/from work or school on their most recent trip. In theory, this is great news in terms of reducing emissions from cars and decreasing the amount of people driving on downtown Austin streets. With a maximum speed of 14.8 miles per hour, Lime scooters are also an attractive option for people who need to get somewhere quickly and don’t have the time to walk or find another mode of transportation.

Lime also launched several other campaigns last year, including their “Lime Green” initiative that focuses on sustainability that included adding “the industry’s first 100% carbon-free electric fleet” to the streets of Austin and beyond, as well as their “Lime to the Polls” campaign that offered rides free of charge for riders to get to and from the polls to cast their votes.

With Lime scooters in over 5 continents around the world, it’s not likely that they’ll disappear from Austin’s city streets anytime soon, and banning them entirely might not be the most effective solution for this disruptive technology. Improved rider education and increased safety precautions and initiatives would be beneficial so potential users are 100% aware of the assumption of risk they’re taking when they tap “I agree” and scan a scooter with their smart phone, allowing them to make informed decisions for themselves regarding their safety and e-scooters.

While the CDC conducts their study on the reported injuries in Austin, the city has paused license applications for new dock-less scooter and bike companies “while staff assess the level of demand for currently licensed vehicles,” and they “will make a determination as to whether to resume issuing licenses once it has collected and analyzed data that indicate the level of demand for existing licensed devices,”.

From here, it’s hard to say what the future of e-scooters and e-scooter company liability looks like. The official CDC report examining scooter related injuries in Austin is reported by CNBC to be released sometime yet this spring, and CBS Austin reports that the Austin City council will also be meeting this spring to talk about scooter safety and potential measures to protect Austin riders, pedestrians and motorists alike.

We’re looking forward to what the final CDC study findings report, and how it could possibly influence liability & negligence lawsuits in relation to e-scooter accidents in Austin and throughout the rest of the country and even the world.

Thank you for visiting the Jarvis, Garcia & Erskine blog. We are a scooter injury law firm that writes to inform Austin locals about news, events and laws.