Deteriorating infrastructure and the potential for injury has the California city and on-demand scooter suppliers Bird, Lime, Lyft, Razor and Spin tussling over who should be held responsible when a rider is hurt.
(TNS) — Electric scooter companies are squaring off with Oakland over who should be liable when a rider gets injured after careening over a bump in the sidewalk, or hitting one of the city’s notorious potholes.
City officials want to hold the companies responsible, even for roads that have deteriorated because the city failed to maintain them. But the companies and their allies are fighting back, saying that rutted roads and crumbling pavement shouldn’t be their problem.
The argument escalated Wednesday, when representatives of Bird, Lime, Lyft, Razor and Spin sent a letter to the city attorney, mayor and other officials, challenging the language being drawn up for Oakland’s terms and conditions to operate e-scooters in the city. It includes terms that release Oakland from liability for injuries “arising out of, or relating to the design, construction, maintenance, repair, replacement, oversight, management, or supervision of any physical, environmental, or dangerous conditions” of public streets.
The companies said these terms are unusual. “Many cities have adopted reasonable indemnification provisions which do not seek to include the city’s own negligence and does not
explicitly carve out the city’s responsibility to riders to maintain the city’s right of way and infrastructure,” they wrote.
A spokesman for City Attorney Barbara Parker said Parker would review the letter. He declined to comment further.
In the last couple of years, Oakland has paid hundreds of thousands of dollars to settle lawsuits for dangerous conditions on streets and sidewalks. But e-scooters are new terrain.
The two-wheeled gadgets have caused scores of accidents since landing on streets throughout the country last year. Toddlers and elderly people have been hit on sidewalks; riders have shown up in emergency rooms with injuries ranging from compound fractures to cranial bleeding. Though the issue has caused mounting concern among physicians, it seems nobody wants to be held at fault. Many companies set up user agreements to insulate themselves from lawsuits, but now cities want to be shielded as well.
“Right now the position is, ‘I’m not responsible for anything, you’re responsible for everything,’” said Thom Rickert, vice president and emerging risk specialist at Argo Group, an underwriter of specialty insurance.
That mantra holds for both the cities and the companies, he said, and that it’s a common reaction to a new technology that presents a lot of unknowns. Scooters have small wheel bases that could easily be upset by cracks in the sidewalk — and Oakland has plenty of those. Combine that with riders who zip along at high speeds, often without wearing helmets. It’s a recipe for litigation that could eat away the city’s budget.
Still, the draft regulations Oakland officials are working on now are more stringent than other cities, Rickert said. San Francisco’s e-scooter permit application includes an indemnity clause that releases the city from liability for most injuries and damages, except those caused by “gross negligence or willful misconduct of the city.”
Overall, Oakland has embraced e-scooters, even as other cities recoiled. City Council members called the whizzing devices a fast, reliable mode of transport for people who can’t afford cars. Some officials even touted the e-scooters as a social equalizer that could help in neighborhoods like East Oakland, where BART stations are far apart and bike rental docks end south of the Fruitvale neighborhood border.
Yet the e-scooter companies signaled Wednesday that if Oakland doesn’t soften its rules, it might chase out this new form of micro-mobility.
Oakland transportation officials would not say when the requirements will be made final. The scooter companies hope to have the regulations solidified this week.
“As a policy matter, we appreciate that the city has made the determination that it wants to encourage sustainable micromobility transportation options,” the companies said in their letter to the city. “However, currently the indemnification provision creates a barrier that runs counter to the city’s own policy choices to incorporate emerging mobility technologies into its transportation network.”
The head of Jack London Improvement District and the bicycle advocacy group Bike East Bay sent similar letters Wednesday, urging the city to change course. Bike East Bay Advocacy Director Dave Campbell pointed out that no other form of transport shoulders the financial risk for unsafe street design.
“Ford and Toyota have no such indemnification requirements, nor does Ford GoBike, privately owned scooters, bicycle manufacturers, AC Transit buses, wheelchair users, shuttle vans, etc.,” he wrote.
Savlan Hauser, the executive director of Jack London Improvement District, agreed.
She called the regulations particularly harsh because e-scooters are most useful in outer neighborhoods with poorly maintained roads, and few transit options.
“We don’t want to make it impossible to have these types of innovations and transportation solutions in our neighborhoods,” Hauser told The Chronicle. “I think there’s a way to work it out.”
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