Lawyers face scooter liability confusion; bill seeks regulations

Just one day after Indianapolis scooter riders were warned that they would no longer be permitted to scoot on sidewalks, a man broke that rule and nearly broke his neck.

Since appearing in Indianapolis, more than 60 people have been transported by ambulance after they were injured in scooter accidents. Injuries range from cuts and broken bones to facial and upper body injuries.

Surveillance video went viral after a helmetless William Brown was struck and cast into the street by a pickup truck pulling out of an Indianapolis parking garage. According to his attorney, Jeff Mendes, Brown sustained a slight concussion and received 15 staples in the back of his head after landing on his back.

“This could have been a lot worse,” Mendes said. “He could have been killed.”

Although no lawsuit was filed and the matter ultimately settled out of court, Mendes said letters of representation seeking damages for the incident were sent to insurers of the truck driver and the security guard directing traffic at the scene. He believes both were liable in the accident.

But Brown wasn’t wearing a helmet as recommended by the city, nor was he riding in the street as required by city ordinance. Mendes said he doesn’t think his client was aware of the Indianapolis ordinance regulating scooter use at the time of the accident, but regardless, the question remains: who was at fault?

Electric scooter companies Lime and Bird unexpectedly dropped thousands of scooters in Indianapolis and Bloomington this year. With them came confusion, concern and a little bit of chaos. The scooters were pulled from city streets and an ordinance was eventually enacted, but more scooter crashes ensued.

Indianapolis EMS said it has transported more than 60 people with scooter-related injuries since the beginning of September, 15 of which occurred in November alone. IEMS spokesman Brian Van Bokkelen said the types of injuries have varied, ranging from scrapes and cuts to broken bones. Most, he said, are facial and upper body injuries, impacting collarbones and jaws.

Signaling potential wider regulation, Rep. Cherrish Pryor, D-Indianapolis, on Friday announced filing House Bill 1036. It would make scooter companies liable for damages caused by the devices and require the companies carry liability insurance. The bill also would require scooter companies to have a toll-free number to respond to concerns and complaints.

Who is liable?

Bloomington trial lawyer Betsy Greene said there’s no overarching answer to the liability question. “It depends on the circumstances of each case,” she said, with the key inquiry being, “who failed to obey the traffic rules?”

Some of the traffic rules for scooters typically include riding in the street alongside other vehicles, wearing helmets and parking the scooters upright on the edge of the sidewalk, leaving sufficient room for pedestrians and doorways.

But there’s a catch, Greene said. Those rules vary in each city, and what may be permitted in one place may not be in another. Placing scooters in a particular category has also proven to be a problem.

“These things have to get sorted out,” she said. “Are they bicycles and do they have to follow the bicycle rules? Well, in Bloomington, that means they can ride them on the sidewalk. But in Indianapolis, no. So it’s hard to know what rules apply.”

Greene and Mendes said they think the concept of scooter injury claims is uncharted territory for the legal industry. Indianapolis attorney Jenna Shives agreed, saying scooter claims are something new that she’s had to navigate in her insurance coverage work. Because it’s so new, Shives said, most insurance companies immediately deny claims brought by scooter riders.

“They’ll do a surface assessment and say, ‘Well that’s not covered,’ but don’t look at the actual details of the language,” explained Shives, an associate at Plews Shadley Racher & Braun. “The policyholder might just accept what the insurance company is saying and not do any deeper look to see if there’s coverage.”

But there are other avenues of potential recovery, Shives found. Still, she said it’s been a “hodge-podge” of searching for insurance coverage for her scooter clients.

“In one instance, the auto policy had a provision that only four-wheeled vehicles were covered under her policy,” Shives said. “And we looked at it and actually found that she did have coverage under another coverage provision that if she was simply hit by a motor vehicle, which she was in the accident, then there should be coverage.”

Navigating confusion

Greene advised fellow attorneys to stick to the law if approached with a scooter claim, keep up-to-date with local and city ordinances and analyze every situation on a case-by-case basis.

“As lawyers we just have to go back to the principles of negligence,” Greene said. “Did all of the people involved here use reasonable care? Was there someone who didn’t? Is there someone who caused this by their failure to use reasonable care?

“It’s the same analysis of a car crash or any injury case,” she continued. “We have to assess whether we think there’s liability before we even take them. So, I think for law firms to prepare, we need to stay informed. I think we need to look at local laws, which are still evolving.”

Greene wonders if the scooter craze is just another fad. Meantime, she’s ready to learn more about how to best approach scooter cases and how to best understand their complexities.

“A lot of times people will ask me, ‘Can’t these scooter companies be held responsible?’” Greene said. “It just depends on state law, local law, as to whether those companies can be held liable.”

This article was first published by The Indiana Lawyer.

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