Electric Scooters: Their Time Has Not Yet Arrived in Massachusetts

Issue July/August 2020 August 2020 By Eric P. Finamore
Civil Litigation Section Review
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Eric P. Finamore

Electric scooters, commonly known as e-scooters, are an appealing solution to a variety of transportation issues. These lightweight, single-occupant vehicles have become popular for both recreation and transportation. They resemble a classic foot scooter, with two wheels, a footboard and handlebars, and are equipped with electric motors. They generally weigh less than 30 pounds and have a top speed of 15 miles per hour. At the low end, they are marketed as toys by retailers such as Target, for prices around $120. Higher-end models by established manufacturers like Razor and Gotrax can cost between $500 and $1,000.

E-scooters allow a rider to move easily in an urban environment at speeds much faster than the rider could walk, using a minimum of fuel, and without contributing to traffic congestion or air pollution. In theory, they represent a realistic commuting alternative. Various studies have opined that widespread use of e-scooters could increase employment options for residents in areas underserved by public transportation. Of course, weather permitting, riding an e-scooter is also more fun than sitting in a crowded bus.

Big players in ridesharing such as Lime, Bird, Lyft and Jump have maneuvered to capitalize on the popularity of e-scooters by setting up dockless rental programs. Riders can reserve, rent, use and return GPS-equipped e-scooters through smartphone apps, just as they are accustomed to doing with rideshare cars and bicycles. This commercial rental conduit makes it likely that the supply of e-scooters will expand to fill a growing market.

Nevertheless, use of e-scooters on public ways in Massachusetts has not reached the device’s seeming potential. Significant legal issues of classification, regulation, insurance and liability remain to be addressed before e-scooters can become a standard means of transportation on public streets in the commonwealth.

Most of the legal issues arise from concerns for safety. Studies suggest that, nationwide, the increased use of e-scooters is associated with a dramatic increase in emergency room treatment of serious head injuries. A research team from the University of California reported that patients presenting at UC hospital emergency rooms between June 2018 and May 2019 showed disproportionately high rates of hospitalization and need for surgery, and that many of the patients had complex facial fractures that threatened or damaged patients’ vision. A study published in the Journal of the American Medical Association reported that the number of e-scooter-related injuries jumped 222% between 2014 and 2018, and increased 83% from 8,016 in 2017 to 14,651 in 2018. E-scooter riders ages 18 to 34 were the most likely to be injured, and the vast majority of those injured did not wear helmets. Locally, it was widely reported that a pilot e-scooter project in Brookline, commenced in early 2019, resulted in a head injury  to one of the very first riders using the program within a very few minutes of the commencement of the project.

Use of e-scooters on public streets poses a risk of serious injury and death to riders, pedestrians and others. How are these risks going to be properly apportioned? The risk of serious injury raises the question of first-party and third-party insurance coverage. While an injured rider’s medical costs may well be covered by their own health insurance, there is currently no obvious source of payment for medical costs or other losses incurred by third parties injured as a result of e-scooter use. Homeowners insurance policies exclude coverage for losses caused by motor vehicles, and therefore would not cover injuries arising out of the use of e-scooters. Household motor vehicle insurance does not provide coverage for such “vehicles.” Claimants seeking compensation for injuries caused by a third-party’s negligent operation of an e-scooter cannot reasonably expect that there will be coverage through any insurance policy maintained by the owner or driver of the scooter.

Compounding this problem is the fact that, as presently written, Massachusetts’ motor vehicle laws would seem to prohibit the use of e-scooters on public ways. Classified as “motorized scooters” by Chapter 90 of the General Laws, the devices are required to have both lights and turn signals. As presently marketed, e-scooters have neither. They do not seem to be legal to operate on streets, bike paths or sidewalks, under any interpretation of the statute. In 2018, the Cambridge City Council canceled a pilot program and ordered vendors to remove e-scooters from public streets because of these legal issues, and out of concern that the scooters were blocking sidewalks.

The doubtful legal status for street use makes the likelihood of insurance coverage more remote. Registration for street use of motor vehicles that are legal under Chapter 90 is conditioned upon compliance with mandatory insurance requirements. No such leverage exists for e-scooters, which are therefore only able to be operated illegally and uninsured on public streets, or legally but still uninsured in other locations.

Despite these problems, there is considerable interest in promoting increased use of e-scooters in Massachusetts through private ownership and/or commercial rideshare programs. A variety of legislative proposals, including several bills currently pending, would remove e-scooters from the definition of motorized scooters in Chapter 90, and would establish them as “micro-mobility devices,” “electric foot scooters” or other similar categories. Classified as such, e-scooters would then be separately regulated. Licensure, registration, drivers’ age requirements, helmets, other mandated safety devices and insurance coverage all are yet to be considered. One bill currently pending in the House of Representatives would require rideshare programs making e-scooters available for rent to provide insurance coverage identical to that required for rideshare vehicles such as Uber and Lyft. This provision could solve part of the problem by allocating the risks inherent in commercial rentals. Yet, the cost of this high-limit coverage could be prohibitive, and industry leaders will have to determine whether the premiums for such insurance render rideshare programs economically unworkable. In any event, such a requirement will do nothing to address the injuries and losses caused by privately owned e-scooters on public ways, for which no present source of coverage exists.

The initial appeal of e-scooters as transportation devices must be tempered by consideration of the losses, injuries and costs they will inevitably cause. The Civil Litigation Section Council of the Massachusetts Bar Association has established a subcommittee to consider these issues and to monitor pending legislative solutions. Lawyers representing any individuals or companies involved in this equation — private e-scooter owners, injured parties, rental companies, retailers and manufactures — have an interest in the development of orderly and predictable rules by which these claims will be addressed. Development of those rules awaits concerted efforts by the bar, the Legislature and industry. 

Eric P. Finamore is a managing member of Weston Patrick PA in Boston and former chair of the Massachusetts Bar Association’s Civil Litigation Section Council.