Easy Riders

By: Bruce Selcraig

Riding brazenly tandem on a single Lime e-scooter, sans helmets, two 30-ish tattooed locals zipped between Alamo Plaza and downtown San Antonio’s old federal courthouse like they were late for a hipster photo shoot.

“It’s about freedom — no gas, no parking, go where you want, all for a dollar,” said Danny Vinton as he pulled to a stop with friend Tania Sterling. “We love scooters.”

But not so much the labyrinthine user contract they had “agreed” to with the touch of a finger. The 18,404-word document — about five times the length of this story — would take 261 cellphone screens to read.

By consenting, Lime renters take responsibility for all accidents and damage, agree to settle “ANY AND ALL” disputes through confidential binding arbitration, give up the right to sue Lime or participate in class action lawsuits and accept a $100 limit on the firm’s liability.

Among a maze of other promises, the users affirm that they’ll ride one person to a scooter, that they’ve been advised to wear helmets and that they’ve had no drug or alcohol “incidents” in the past seven years.

Customers acknowledge that Lime scooters “may run out of charging power and cease to operate at any time.” They even agree that Lime has never implied that its “equipment will be in good repair.” Lime scooters are rented “as is” and “with all faults,” the contract says.

“Did we actually sign that?” asked Sterling, incredulous. “I’m not sure I like that. But we’ve really got to go now. Bye…”

Such legal straitjackets — made possible by the seductive ease of a smartphone — are both the main target of a mounting legal backlash against a burgeoning industry and the industry’s main line of defense.

Since e-scooters suddenly appeared on sidewalks around the country in the summer of 2018, their companies have been the subject of at least five class action lawsuits in California and a handful of personal injury claims in Texas, variously alleging gross negligence and haphazard maintenance. Some suits accuse scooter companies of silencing whistleblowers and disregarding the safety of pedestrians, store owners and the disabled.

In many other cases, however, lawyers are watching and waiting before going to court, gathering medical evaluations and trying to examine the scooters themselves. What they lack, so far, is a history of settlements to guide their negotiations.

At least seven riders have died from scooter mishaps since last September, including one in Austin on Feb. 1 and two just this month in southern California. So far, no investigation has conclusively shown the scooters to be solely at fault in the fatal crashes, and apparently none of the riders was wearing a helmet. But as hundreds of serious injuries have accumulated across the country, plaintiffs’ lawyers are noting some similarities.

“There’s a common theme to the cases — failure of the components, especially the brakes,” said San Antonio attorney Rian Butler of the Zinda law firm.

“All of our cases are against Lime and Bird,” Butler said. “They fancy themselves as a billion-dollar startups, but do they care about their customers getting life-changing injuries and often facing healthcare bankruptcy?”

Butler read from a stack of not-yet-filed cases.

“A 40-year-old San Antonio woman, first-time rider, outside a downtown hotel. All the sudden the brakes aren’t working on her Lime scooter. Broken ulna, broken radius. She’s in a cast.”

“A woman in Austin, first-time rider in her late 20s, in front of the Capitol, last August,” Butler continued. “Scooter topples over and she goes flying into the wrought-iron fence” outside the Capitol.

“Another one in Austin. She’s going downhill in South Austin and the brakes fail. Broken collarbone. She’s 55. Went to the hospital in an ambulance.”

Winnowing out weak cases is part of the early groundwork. Austin attorney Jim Freeman, who has nine billboards around that city seeking scooter injury clients — a slogan he rejected went, “So you went for a scooty and lost your booty?” — said he has “eight to ten” cases ready to file but has turned away more than 20.

“One guy was carrying his dog on his shoulder, so I said, ‘No thank you’ to him,” Freeman said. “There is the dumbass factor.”

If the facts suggest the rider bore as much as 60 percent of the responsibility for an accident, Freeman said, he’ll probably reject the case. Like most plaintiffs’ attorneys, he wants cases with powerful evidence of company negligence and the potential for large medical damages.

In rare public comments about the hazards of riding, scooter companies have said that users know the risks and have enjoyed tens of millions of injury-free jaunts.

“The number of injuries amounts to less than a fraction of 1 percent of the total number of e-scooter rides taken worldwide,” Bird’s director of safety, Paul Steely White, told the BBC recently. “Car crashes kill more than one million people each year.”

The nation’s first fatality involving a rented e-scooter appears to be that of Dallas restaurant worker Jacoby Stoneking, 24, who died of a cerebral hemorrhage Sept. 2. He’d been found on a sidewalk around 3:18 a.m. the day before, on the edge of downtown Dallas, about 160 yards away from his broken Lime scooter.

“He was close to unconsciousness,” said Tyler attorney Michael Ace, who has sued Lime on behalf of the Stoneking family. “But he had the ability to call his roommate and say, ‘Call a Lyft. I’ve hurt my leg.’ The scooter was broken in half. The deck is broken, but I haven’t seen it, nor has Lime. The Dallas police impounded it. We have to get an engineer to look at it.”

Binding agreement
Dallas police say the case is still under investigation. Ace said Stoneking’s injuries were “not inconsistent” with being thrown from a scooter at about 15 mph, usually the top listed speed for rentable scooters.

Tom Fee, a prominent Dallas attorney who works for major companies in product liability cases, is representing Lime and its parent, Neutron Holdings. He declined to comment, as did Lime.

In a court document responding to the Stoneking family lawsuit, Fee wrote that the young man caused his own injuries and the plaintiffs are not entitled to a jury trial.

Six times, the response states: “Plaintiffs are bound by a contractual clause in a binding agreement…”

That would be the 261-screen user agreement whose provisions flummoxed Vinton and Sterling, the hipster couple outside Alamo Plaza who had readily clicked on it.

Los Angeles attorney Catherine Lerer, who has brought class action litigation against Bird, Lime and Segway, said she has between 100 to 200 more scooter injury cases “in pre-discovery,” waiting to be filed.

Lerer said said she hopes her clients can get around the user agreements by claiming they are “unconscionable and against public policy” and by convincing judges that “gross negligence” on the part of the companies should override any liability waiver.

“I don’t know if any attorney in the U.S. has been successful in challenging these user agreements,” said Lerer, who’s been in practice about 25 years. “They are absurd. No one could ever actually read these spontaneously. But companies will spend a fortune defending them.”

Lerer said she has gotten numerous calls from scooter-injured Texans.

“Lawyers will have a much tougher time in Texas,” she said. “Judges there will be less inclined to challenge a user agreement.”

Her advice after reviewing hundreds of scooter injury claims? “Always wear a helmet, and don’t ride at night.”

Texas personal injury lawyers poised to join this fray agree that the user agreements pose an obstacle for litigants in the state’s business-friendly civil courts that could be more difficult to surmount than finding out who was actually at fault for the accident.

A consumer advocacy group, Texas Watch, found in a 2012 study of 10 years of civil appeals that the all-Republican Texas Supreme Court sided with defendants, usually corporations or government entities, 74 percent of the time.

“These cases are anything but a slam dunk for the plaintiffs,” said Freeman, the Austin lawyer.

Freeman has been practicing for 25 years. Like some of his colleagues, he said he will take a 25 percent cut of any settlement if he can reach a deal with the company before filing a lawsuit — 33 percent if he has to file.

“What I’m seeing,” he said, “is a lot of brake failure, suspension problems, not enough light from the scooters’ tiny lights and just simply not being able to stop when they get up around 15 to 20 miles an hour.”  

After first appearing last summer in Santa Monica, California, e-scooters — sometimes referred to as dockless vehicles — spread to more than 250 U.S. cities and college campuses, fueled by venture capital from Silicon Valley but also college endowment funds — the University of Texas has money in Bird — and legacy corporations like Ford.

Lime, valued by Bloomberg at nearly $2 billion, attracted investors like Uber and Alphabet, the parent of Google, and joined the technology-lifestyle-recreation niche with Bird, Lyft, Jump Bikes (Uber), Bold, Scoot, Skip, Spin (Ford), Grin, Yellow, Razor, Dott, Tier, Zagster and San Antonio’s Blue Duck.

The city of Milwaukee sued Bird last year, claiming the company, also valued by Bloomberg at nearly $2 billion, dumped 100 scooters in its downtown without any notice or permission, then refused to remove them when asked. Bird had already paid Santa Monica, where the firm is based, $300,000 to settle a nine-count misdemeanor criminal complaint. A Santa Monica storeowner initiated a class action lawsuit alleging that Bird’s “business model completely disregards the interests of property owners.”

Two 2018 company recalls of Lime scooters involved cracked baseboards and flammable batteries. Hospitals around the country have seen a scooter surge. In surveying just 23 of America’s 6,200 hospitals, Consumer Reports found that e-scooters were involved in 1,545 injury-accidents last year. A study by the Centers for Disease Control and Prevention based on Austin injuries is to be released April 1.  

Several lawsuits name Lime and its parent company, plus Bird and scooter manufacturers Segway and Xiaomi, alleging that scooter brakes failed, accelerators locked up, vehicles were shoddily designed and the companies showed gross negligence in allowing poorly maintained scooters to remain on city streets.

A former mechanic for Bird, Matt Fisher, has claimed in a California lawsuit that he was unlawfully terminated because he complained when the company allegedly instructed its mechanics to release to the public as “not damaged” scooters that had missing screws and loose handlebars.

“It’s hard to watch this neglect. … Putting people’s lives in danger is a crime,” Fisher said on the company’s internal message system. “I’m not going to ignore the damages. I’m not going to put people’s lives at risk.”

Fisher’s lawsuit claims Bird managers chastised him for complaining about the scooter maintenance, and that one allegedly told him, “Other people are not supposed to know about this” before he was fired.

In Bird’s response, lawyers denied all of Fisher’s allegations and noted that, regardless of his claims, he had entered into an employment agreement where he said he would handle any complaints through binding arbitration.

Bird and Lime have the most scooter permits in San Antonio, with Bird at 4,500 and Lime at 4,000, though they might have fewer actually on the streets. Neither company would provide an official to speak on the record about specific lawsuits or the litigation facing the industry.

“As a transportation company, the safety of our riders, chargers, mechanics and all others who interact with our vehicles is our utmost concern,” said a Bird spokesperson. “As a result, we take the safety and maintenance of Birds very seriously and provide thorough instructions on how to safely ride, maintain and care for our vehicles.”

Choices for city
Since September 2018, the San Antonio Fire Department has received at least 120 reports of scooter-related injuries, mostly cuts and bruises, but many broken bones.

A six-month pilot program that permitted seven companies to operate 14,000 dockless vehicles in San Antonio will end in mid-April. Several City Council members have voiced unease, or alarm, about safety and sidewalk aesthetics. Yet few seem ready to require that all riders wear helmets, though scooter companies strongly encourage it.

“We really need a deep dive into the legal liability of the scooter situation,” Councilmember Manny Pelaez said. “And I’m not allergic to having a conversation about banning them entirely. If we handle them in the concession model, like we’ve done with the river barges, granting long-term licenses, then we must also require user agreements that aren’t so disturbingly one-sided.”

Mayor Ron Nirenberg said the pilot program was designed to get a grip on a “totally unregulated environment” for an innovative technology, without too heavy a hand.

But there is no consensus on “best practices” among cities so far, said John Jacks, director of the Center City Development and Operations Department and the council’s go-to guy on scooters. He said he and his staff have monitored litigation around the country and spoken to transportation departments in Austin, Dallas and Houston.

Texas cities, whose “sovereign immunity” usually protects them against personal injury lawsuits, are closely watching each other to see what level of regulation keeps scooter companies happy yet protects citizens from being lured into what lawyers might call an “attractive hazard.”

At a minimum, Jacks said, he expects the Council to reduce the number of permitted scooters and to move to a concession model where two or three companies would be granted long-term contracts.

In California, a proposed bill would require all scooter companies to carry at least $5 million in liability insurance (covering themselves and riders) and obligate cities to adopt scooter safety rules. The bill also would prohibit any user agreement in which riders waive their legal rights. In Texas, Sen. Royce West, D-Dallas, has filed Senate Bill 549, a measure that would require riders be at least 16, have driver’s licenses and not to ride tandem, go over 15 mph or park scooters so that they obstruct paths or sidewalks.

Scooter industry lawyers have rarely spoken publicly about any individual case or their legal strategy, but the companies offer a defense along these lines: Even if hundreds of people sue us, that would be a tiny fraction of the injury-free rides people have enjoyed since scooters were introduced last year. People know the risks and sign our agreements. We’re a disruptive business that fills an urgent need in the transportation puzzle, and most people love us.

Even if serious injuries are rare, attorneys now circling the fledgling industry want judges and juries to believe there’s a pattern to them. Scooter companies, they plan to argue, nurture a quick-profit business culture that ignores known safety defects and customer complaints.

Rehearsing arguments
Many of the lawsuits already filed cite brake failure as a critical issue, particularly when the scooter is going downhill.

Phil Rosescu, a forensic engineer in Marina del Rey, California, who testifies as an expert witness in vehicle accidents (usually for plaintiffs), said the Chinese-made Ninebot Segway ES2 scooter — retailing at $569 and often seen under the Lime brand — has both an electronic thumb brake on the steering wheel and a more-effective rear fender foot-brake often ignored by riders.

Rosescu tested the brakes’ effectiveness on steep downhill grades.

“We found the thumb brake would not really bring us to a stop,” Rosescu said. “It would decelerate you to about 11 miles an hour, and that was with it pressed all the way down.” The most effective brakes, Rosescu found, were rear cable brakes.

Other problems alleged in lawsuits include sticking throttles, motors that suddenly cut off, unsteady solid-core tires, steering columns that broke and carbon-fiber scooter boards that split apart at the base of the steering column.

“But the scooter companies weren’t gathering up all the scooters and fixing all of these problems,” Rosescu said. “They waited for the complaints and injuries and then did something.”

In contrast, he said he found some manufacturers, such as Bird, quickly responded to vandalized brake cables in early models by hiding the cables within the scooter’s frame or housing.

A consistent problem, the lawyers say, is that the biggest piece of evidence, the scooter itself, is lost to plaintiffs because it almost always gets returned to the company or left at the scene of an accident to be rented again.

If that happens, said Freeman, about the best an injured rider can do is to note the vehicle’s registration number and take photos, but often that’s the last thing on their minds — if they’re conscious.

But protecting the chain of evidence may not mean as much in Texas if judges instruct juries that the plaintiffs agreed — before they were injured — that the company never implied that its scooters worked or were maintained properly.

Scooter firms “probably feel some invincibility with these user agreements,” said San Antonio attorney Rian Butler.

“Unless someone busts one of these user agreements, I think the litigation could be very difficult,” said attorney Gary Gibson with San Antonio’s Carabin & Shaw. “There’s a very high standard in Texas for proving gross negligence.

“The company has to recognize there is danger and proceed with gross indifference — almost intentional, but not quite. If they knowingly put them out with bad brakes, that might cut it in Texas,” he said. “But I have never won with this strategy. I have never tried.”

No attorney interviewed for this story knew of any scooter injury case in America that had yet gone to trial.

A few appear to have been settled out of court, but because there is so little judicial precedent on the major issues — the user agreement, responsibility for maintenance and safety, rider compliance with local law — several lawyers in Texas admitted they were hoping for some case law before their cases ever got near a jury.

“It’s a weird spot to be in, personally,” Butler said. “You’re making up the (strategy) as you go. It’s interesting, but it makes it tough on everyone. We simply have to get past the user agreement.”