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John Kendall

Publication Date

3-2020

Document Type

Comment

Abstract

Dockless scooters have been revolutionizing the way individuals in highly populated towns and cities commute on a day-to-day basis across the country. Instead of riding the bus, individuals now have the option to pay money to ride scooters short distances and save themselves the hassle of riding on crowded buses. Among the many issues and questions this creates for lawyers and lawmakers, one particularly noteworthy issue is whether the electronic waivers and arbitration clauses scooter companies require riders to sign before operating the scooters can shield the scooter companies from liability when the unexpected occurs. Currently, the top dockless scooter companies only require riders to submit pictures of their driver’s licenses and credit cards or enter alternate payment methods in order to have access to the app. These companies do not require, however, riders to submit a picture of them wearing a helmet or other protective gear in order to increase safety. Yet, the companies do require the riders to accept a terms and conditions statement that waives the scooter companies’ liability and generates an arbitration agreement in many cases.

The scooters from most companies can reach speeds up to about fifteen miles per hour. However, a small study recently carried out in California reported that only five percent of users actually wear helmets. In that same study, the report found that about 40% of those riders suffered head injuries as a result of not wearing a helmet. Many riders also reported broken bones and other injuries as a result of falling off the electric scooters while traveling. Shortly after the scooter companies began ramping up business in popular millennial areas, lawsuits began to flood in against the scooter companies for ordinary negligence and “gross negligence.” One such complaint alleged that the scooter companies “knew and/or should have known that their scooters are, would become and would continue to be an unsafe, dangerous and damaging public nuisance.”

Lawyers and lawmakers should be aware of the types of lawsuits and claims that may be brought by individuals injured on these dockless scooters for a variety of reasons. However, it is important to note which types of lawsuits will be brought and the reasoning behind them at the start. In a recent article published on the American Association for Justice website, author Ira Leesfield and Justin Shapiro generally touch on this subject. To begin with, the three important claims to be aware of are: (1) failure to warn, (2) negligent maintenance, and (3) failure to provide necessary equipment. While this Comment will focus primarily on the waiver provisions of these claims, it is important to understand what the waivers protect the scooter companies from.

The failure to warn argument primarily stems from the idea that the scooter companies have failed to warn riders of the possible dangers and risks associated with operating the scooters regardless of if they are wearing a helmet or not. There is likely an assumption of the risk argument against this liability theory; however, that will be discussed in more detail later in the Comment. The next main argument is the scooter company’s negligent maintenance of the scooters. Assuming something malfunctioned on the scooter, it will be the scooter company’s duty to produce evidence that the company properly inspected and maintained the scooters on a regular basis. Lastly, an important legal argument will be the failure of the scooter companies to provide necessary equipment to operate the dockless scooters. Head injuries will continue to occur on these scooters, and this argument may prove effective when trying to prove the scooter companies’ liability.

After examining the general types of claims, the issue is that the main defenses scooter companies raise are that the individual riders have waived any claims against the scooter companies by agreeing to the terms of service. Moreover, the scooter companies have included arbitration clauses in the agreements riders must accept before being allowed to operate the dockless scooters. Many jurisdictions interpret these clauses in different ways, and depending on where you are, scooter companies will be more protected. This Comment will focus mainly on how states in the Southeast, particularly Georgia, are likely to interpret these clauses and protect individual riders against the scooter companies. After discussing the contract principles of arbitration and waiver liability, this Comment will delve into when and how these issues arise, and what that means for the legal side of things in the future.

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