Several Californians have sued electric scooter companies Bird and Lime, alleging that the startups have been negligent and are responsible for physical injuries or blocking of handicapped parking spaces.
The proposed class-action lawsuit, Borgia et al. v. Bird Rides Inc. et al., which was filed last Friday in Los Angeles county court, raises a question that has been at the heart of this ever-expanding business model: who is responsible for making sure that riders obey not only existing traffic laws but company policies as well? And if anyone gets hurt by the scooter, who pays?
While previous lawsuits have alleged the companies are liable for scooter-related injuries, this lawsuit appears to be the first proposed class-action suit.
Catherine Lerer, a Santa Monica personal injury attorney representing these plaintiffs, told Ars that, since the lawsuit was filed, her phones have been "ringing nonstop" by people injured via scooter from around the country.
She said that the user agreements that Lime and Bird users consent to essentially absolve the companies of any responsibilities in the event of injury.
"Under the draconian user agreements, riders who download it—nobody reads it. And the Lime user agreement is 261 cell phone pages; Bird is 58 pages—not one rider I've ever spoken to, not one ever reads [them]. They click whatever they're supposed to click," she said.
"Those user agreements preclude an injury victim from suing Bird for negligence, for gross negligence, [and] for any injuries. [Any one of these agreements] precludes class-action lawsuits—basically the rider gives up all rights. That's not right. A car rental company would not get away with that, and an auto manufacturer could not get away with that."
The lawsuit also names Xiaomi, a Chinese scooter manufacturer, as a defendant.
Back in April 2018, the city attorney of San Francisco sent three cease-and-desist letters to three electric-scooter companies, telling them to cease operations as the city re-evaluated a new permitting regime.
Bird, which was founded in Santa Monica just last year, has since expanded to numerous cities across the Golden State as well as cities in Oregon, Arizona, Utah, Colorado, Missouri, and more. Similarly, Lime also exists in many localities nationwide, including New York, Wisconsin, and Louisiana, among others.
The two companies operate on essentially the same business model: download the app, pay $1 to start a scooter rental, and then pay $0.15 – $0.20 per minute after that. Companies make users swear that they will abide by numerous policies, such as being over 18, wearing helmets, only riding in bike lanes, and not blocking public pathways. But such rules are routinely flouted.
"Lime is not responsible for enforcing the law," Joe Arellano, a Lime spokesman, emailed Ars in August 2018. "However, it is our responsibility to fully educate our riders and the community at large about existing laws related to riding a shared electric scooter. That is why we instruct our users on the rules dealing with safe riding and proper parking, and [we] provide free helmets."
This reporter is an occasional Lime and Bird rider who has never worn a helmet while riding, and he has only seen a tiny fraction of riders doing so in the Bay Area and Santa Monica. Lime has never provided him with a helmet.
In many cities where such scooters exist, workers come overnight to place scooters in a neat row at certain street corners, almost magically. However, by days end, they are strewn about and sometimes knocked over.
One of the plaintiffs in the new lawsuit, Tina Ogata, says that she "tripped over three Lime Scooters that were left on the sidewalk," resulting in a broken left wrist and ring finger. Other co-plaintiffs allege similar injuries.
“Aiding and abetting”
In some cities like Oakland, scooters are also routinely thrown in nearby bodies of water in protest. Arellano, the Lime spokesman, told Ars by email that the company had pulled 56 scooters to date from Lake Merritt, a small lagoon in downtown Oakland.
"We have also retrieved SKIP and Bird scooters a handful of times, as well," he wrote. "Every time we see a scooter, regardless of operator, our team is instructed to grab it."
The lawsuit notes that scooters have been thrown into "trashcans, dumpsters, the Venice Canals, and the Pacific Ocean, in addition to lighting the scooters on fire (which, due to their batteries, can cause explosions) and burying them in the sand of California's beaches."
Ars emailed both companies to specifically ask if this was the first negligence-related lawsuit they have faced and what responsibility the companies feel about leaving scooters anywhere. They did not respond directly to our questions.
In a statement, Rachel Katz, a spokeswoman for Bird, wrote that "attorneys with a real interest in improving transportation safety should be focused on reducing the 40,000 deaths caused by cars every year in the United States."
She continued, noting that "shared e-scooters are already replacing millions of short car trips and the pollution that comes with them." When Ars asked Katz to provide a source for that statistic on Tuesday morning, she did not respond.
Cities nationwide are now trying to figure out how best to manage these new scooters.
Lerer also noted that there's an easy way to manage how the scooters are parked: impose stricter geofencing and penalize riders who disobey those rules. For example, she noted, scooters where she lives (Santa Monica) are routinely deposited near middle schools and the city's high school after having been charged.
"You have to be 18 to ride these things," she said. "Why are they allowing their chargers to place them in front of the middle and high schools? They're aiding and abetting the assault on pedestrians."