I was driving my 3,800-pound tank of a sedan on a major street in downtown Montreal recently during what we call a “wintry mix” of snow, freezing rain, and brutal sleet. I was passed by a lunatic on a rent-by-the-minute electric scooter. Dressed in a warm winter hat (instead of a helmet), this bold adventurer zipped by at around 25 MPH, surely leaving every driver he passed shaking their heads.
Well before the New York winter set in, a 24-year old woman died in November when she and her Lime scooter were run over by a truck in Brooklyn. That was an absolutely brutal death, but mercifully quick, as the truck made a turn and took out the Lime scooter and driver, which it probably never even saw.
While Lime self-reports that 99.98 percent of its trips are incident-free, tragedies such as the recent one in New York are not rare. The inherent lack of safety on a Lime or any of the other branded electric scooters comes from both user errors and inexperience, as well as many aspects under the scooter company’s direct control. These include design flaws in the scooter itself and the fact that there is no rider training or licensing required to drive an electric scooter, which seems intuitive but isn’t.
These scooters are part of what Silicon Valley sees as “the last-mile solution,” a term used to describe the last mile of someone’s commute. Things such as electric scooters are part of this group of last-mile solutions – completing your journey in situations where your feet worked perfectly well in the past.
Public Safety Hazard
While critics see these scooters as a public safety hazard and a solution in search of an actual problem, Lime has raised $1.5 billion in venture capital, with high-profile investors such as Uber, GV (Google Ventures), Alphabet (Google), UBS, and the Abu Dhabi Fund for Development sharing Lime’s vision that it is a several hundred billion-dollar business.
Lime’s user agreement is really no different from the user agreement of any of these electric scooter companies. Yet a deep dive into theirs should have any close reader questioning whether they really want to risk their future on a last-mile solution that might literally prove to be their last mile.
Section 18 of the agreement has an arbitration clause, which, from a legal perspective, should keep everyone off their scooters: “We each mutually agree to resolve any justiciable disputes between us exclusively through final and binding arbitration instead of filing a lawsuit in court.”
There’s no way in a million years that I’d personally get on a Lime scooter since doing so means accepting their terms of service and agreeing to Section 18.
Section 18 continues, with a class action waiver, “We each mutually agree that by entering into this agreement to arbitrate, we both waive our right to have any dispute or claim brought, heard or arbitrated as, or to participate in, a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action.”
Anyone thinking that this is all okay, because Lime must be at least standing behind the safety of the scooter they rent you, will be sadly disappointed. Section 9 covers warranty disclaimers, which Lime wisely chooses to list in capital letters. This one sentence is all you need to know: “WE PROVIDE OUR SERVICES “AS IS” AND “AS AVAILABLE.”
Implied here is the reality that every user of last-mile solutions will always need to face. You’re renting a shared electric scooter. People are using these pretty much all day, every day. Yes, we have the expectation as users that the scooters are going to be safe and regularly maintained, but in reality that is far more of an aspiration than a reality that Lime is legally obliged to deliver.
These companies are very smart in that they refer to their scooter throughout the terms of service as part of their “services.” Anyone who reads the terms will be surprised at how much they twist this term, clearly using “services” where we’d expect to see the world “scooter,” such as here: “Don’t tamper with, vandalize or try to gain unauthorized access to our Services.”
This is part of Section 6 of the agreement, which also states: “You are also not permitted to use our Services to participate in activities beyond a particular Product’s intended use. Some of these are obvious, but for example, no racing, mountain riding,”
Obviously, the “services” in issue are the scooters, as you can’t race an algorithm.
As the scooters themselves, not how well the app works, should be by far our most serious concern, Lime sets out what they see as their standard of care: “We provide our Services using a commercially reasonable level of skill and care, and while we strive for the highest quality in everything we do, there are certain things we cannot promise of our Services.”
So whatever the “commercially reasonable” level of maintenance of these scooters is, I guarantee it’s less than you and I expect it is.
Krenar Camilli, a New Jersey lawyer well-versed in the laws related to electric scooters, Uber, and the sharing economy, strongly cautions us all to understand what we’re getting into when we reach for our phone and unlock an electric scooter. “You need to be aware of what you’re doing as an electric user by waiving your rights to a lawsuit when you agree to the legally-binding arbitration mandated in the user agreement. Given the nature of these scooters and how potentially dangerous they can be, especially when improperly maintained, you should closely read the user agreement and decide for yourself whether you’re comfortable with the terms.”
We all know it’s impossible in life to be sure that anything is perfectly safe and there’s nothing wrong with assuming the risk of certain activities when we understand what we’re getting into. That’s the problem with these scooter companies – we understand one thing when we sign up for the service and use the scooters but the reality of what we don’t know can be tragic.