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E-Scooters Create New Headaches for Employers

As the use of the motorized child’s toy by adults proliferates, so do accidents and injuries.

It was a bright, sunny late October day in Austin, Texas, when my wife and I strolled down the sidewalk heading from our hotel to the nearby shopping district. We got to the street corner and I suddenly tripped over something I hadn’t seen. I looked down to find my feet tangled in an electronic scooter lying flat on the sidewalk. I would have tumbled onto the pavement if it hadn’t been for my wife, who also stopped me after I started angrily kicking at this newest personal transportation fad.

If I had injured myself, I wouldn’t have been alone. Emergency rooms in cities across the country that have experienced the proliferation of this new kind of for-hire personal transportation are seeing a spike in injuries to e-scooter riders and sometimes their pedestrian victims as well. One Salt Lake City hospital has experienced a 161% jump in emergency room visits that can be directly traced to the new conveyances.

In other cities where the e-scooters have suddenly appeared, soon after so have similar increases in reports of injuries like scrapes, bruises, lost teeth, broken bones and head injuries. The latter stems from most riders’ failure to wear helmets. In fact, in every city where I have seen these scooters in use, I have never seen a single rider wearing a helmet.

And by saying that the e-scooters “suddenly appeared” I mean that quite literally. An essential part of the business model for the companies introducing e-scooters is to immediately start operating in a city prior to negotiating with the local government. Their apparent strategic concept is summed up by the old saw that it’s better to seek forgiveness than to ask for permission.

The companies’ common practice is to negotiate with city officials after the e-scooters are already a fact on the ground. While that practice has succeeded in most metropolitan areas, it didn’t work in Miami and Nashville, where both have banned them after city officials were unamused.

Keep in mind that we are talking about a multi-million-dollar business that sprung up seemingly out of nowhere, started by Travis VanderZanden, a former executive at Lyft and Uber, fueled by venture capital. The largest of these companies is Bird, which introduced its first e-scooters to the public in its hometown of Santa Monica, Calif., in September 2017, and soon afterward began to spread to major metropolitan areas, quickly penetrating more than a dozen other cities.

Today Bird and its competitors like Lime and Skip operate in 10 countries and more than 125 cities in the U.S. Bird alone boasts having already racked up more than 10 million rides and has attracted enough investment interest that the company is currently valued at $2 billion.

Key to making the economics of the system work are individual private contractors, called “chargers,” who charge the scooters’ batteries overnight, then place the scooters in designated “nest” areas throughout the service area each morning. Competition arises among chargers when they use their own vans to pick up the e-scooters left all over the city each evening, with the company paying them a bounty of between $3 and $5 per retrieved scooter.

No sooner had Bird first introduced e-scooters in its home town last year than a rash of injuries began to appear. Dr. Lisa Dabby, who works in the emergency room of UCLA’s Nethercutt Emergency Center, told NBC News, “Since scooters launched in Santa Monica, I’ve seen a large number of people who’ve lost their teeth, who come in with broken bones, head injuries, skull and facial fractures. And I’ve seen a lot of tears, because it’s a really big deal to need surgery or new teeth.”

So far, at least two people have died in accidents across the country. One problem with assessing the danger arising from these devices is that health officials only recently began systematically gathering injury data needed to formally evaluate their safety record. As another doctor observed, “Fifteen miles an hour doesn't sound that fast until you bounce your head off something."

Who Is Liable for Injuries?

Another essential element to the success of Bird and the other e-scooter companies has been the elaborate service agreements they force a customer to sign before using one. Often these agreements include a “hold harmless” clause absolving the company of any liability if there is an accident. (The agreements also require riders to wear helmets).

One problem is that even if the customer has their own medical and auto insurance, whenever an injury claim is filed the insurance providers point to each other as the responsible party for making good on the claim. Bird’s customer agreement explicitly warns that auto insurance may not cover accidents.

The liability issue also creates a headache for employers when workers are injured while using e-scooters in the course of business, according to attorney Susan M. Schaecher of law firm Fisher Phillips.

She cites the case of a Denver man who was using an e-scooter to get across town for a business meeting when he was physically attacked by an angry pedestrian, who took exception to the fact that he was using the scooter on the sidewalk—which is legal in Denver.

This brings up another problem—the laws for operating e-scooters are not well known and vary considerably from location to location, Schaecher observes. In Denver they are classified as “toy vehicles” and are not allowed in bike lanes or in general traffic. In California, e-scooters may not be ridden on sidewalks and must be ridden on the street or in bike lanes.

My experience in Austin tells me they are allowed there on both sidewalks and bike lanes. Given the differing speeds of bikes and scooters, it is quite entertaining—in a NASCAR spectator sort of way—watching them try to avoid colliding with one another in the bike lanes.

Employer liability will continue to grow, Schaecher believes, because it is likely e-scooters will be around a while. “Companies like Uber and Lyft are investing significant sums in this new form of transit. Many people are excited by this option for sustainable and economical car-free commuting. Companies like Google are providing e-scooters to their employees for business use. It is inevitable that employees in cities with the devices will use them on the job.”

Generally, workers’ compensation insurance doesn’t cover injuries sustained by an employee while commuting to a fixed place of employment, she notes. However, it can cover injuries that occur while traveling on work-related business (travel in the course and scope of employment). “When employees travel between offices, to and from meetings, or run errands for their employer, it doesn’t matter if they are in a car, on an e-scooter or on foot,” Schaecher stresses.

Employers also can be held vicariously liable for accidents and injuries their employees cause others while traveling in the scope of their job. She explains that companies can be viewed as a deep-pocketed target in the absence of others who can be sued. “Injured persons may have limited recourse against the e-scooter companies—user agreements limit users to binding arbitration and/or disclaim liability—which may lead some injured persons to look elsewhere for relief.”

In instances where local government codes fail to address safety issues like helmet use and speed limits, employers may address these issues in their policies, Schaecher says. For example, a policy might state that the speed of devices shall be limited to a prudent rate for the conditions.

A policy could require that helmets—either employees’ or helmets provided by the company—must be worn and meet appropriate safety standards. “A general prohibition against participating in any activity that reasonably presents a risk of injury to persons or damage to property while using a device may cover stunts, intoxication and a lot of other ground,” she adds. Any policy also should be sure to distinguish the proper use of medical devices and equipment used by persons with disabilities.

Schaecher says provisions employers may choose to borrow from vehicle use policies for codes of conduct when using e-scooters. This can include stating:

● Employees must know and abide by all applicable laws and regulations.

● Employees are responsible for all citations received.

● Headphones, earphones and cell phones may not be used during operation.

● Only devices with the required, functioning safety devices (lights, reflectors) may be used on company business.

● Users must have a valid driver’s license.

● Passengers are not allowed.

● Users are responsible for being in control of the device at all times so as not to endanger the safety of themselves or others.

“It won’t be long before other new transportation technology is on the scene, including self-driving cars,” Schaecher points out. “Employers need to be aware of what technologies their employees are using for business and set reasonable terms for use.”

Safety Tips from Doctors

California’s Cedars-Sinai Hospital System also offers general safety recommendations to be followed by those who use e-scooters. “As riders flock to electric scooters propped on city sidewalks everywhere, sometimes their trips take them somewhere they didn’t want to go: the emergency room,” the hospital’s professionals warn.

They have treated quite a few of their patients who have been forced to learn these lessons the hard way. “We’re seeing these injuries daily, and at least once or twice a week we’re seeing someone who needs an urgent surgery,” says Dr. Natasha Trentacosta, an orthopaedic surgeon at the Cedars-Sinai Kerlan-Jobe Institute who is working on an epidemiological study of electric scooter-related injuries. “These can be life-changing injuries, and they can often be prevented.”

Many riders forget one important fact: “If you fall, you’re going to get hurt,” says Dr. Sam Torbati, co-chair of Emergency Medicine at Cedars-Sinai. “It’s a moving vehicle and it’s not any safer than riding something like a moped. It goes fairly fast.” Although current speeds are 15 mph, Bird has asked the California State Legislature to raise the speed limit for them to 25 mph.

A few years ago, when self-balancing scooters or hoverboards were popular, similar injuries turned up, mostly among younger people, according to the Cedars-Sinai doctors, but this new trend has plenty of riders in their 40s and older crashing or falling off the scooters. “Everyone really should wear a helmet on these,” Dr. Torbati says. “An adult who falls is just as likely to hit their head as a minor.”

And you can add to the injury total a fair number of people who are getting hurt by tripping over scooters abandoned in sidewalks and doorways, too, both Dr. Trentacosta and I would like to remind you.

E-scooters, like any motorized vehicle or bike, can be used safely with a little common sense, according to Dr. Torbati:

● Wear protective gear. In addition to a helmet, that means wrist guards, knee and elbow pads, and close-toed shoes.

● Start off slowly. The accelerator and braking tabs on the handles can take getting used to.

● Be mindful of surrounding traffic, especially at intersections.

● No one-handed rides. Put down the phone and the coffee cup.

● No headphones or earbuds while operating the scooter.

● Don’t try to operate an electric scooter if you’ve been drinking alcohol.

● Be mindful of your safety, and the safety of others. Be alert to pedestrians and other vehicles. Make sure to leave the scooter out of the way of foot traffic, so it doesn’t create a tripping hazard.

“It’s a fun vehicle,” Dr. Torbati says. “Just remember it can go fast and take some steps to protect yourself.” And those around you, I would like to add.

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