The Law That Could Kill Bike and Scooter Share in California — and Set a Dangerous Precedent For Your State
5:25 PM PDT on August 25, 2020
California is on the brink of passing a bill that would kill bike and scooter share in the Golden State — and if other states follow its lead, it could change our national crash-liability laws for the worse.
Assembly Bill 1286 would make it illegal for motorized scooter, e-skateboard and e-bike rental companies to require users to sign liability waivers as part of their terms of service agreements — a ban that would not affect car-rental or taxi companies, which also require them.
The shift would make micromobility companies automatically liable for many rider injuries, even in cases where bad road design, reckless driving, or the negligence of the rider caused the crash. Under standard liability waivers, people who rent scooters must acknowledge that they're taking a risk by operating a lightweight, non-enclosed vehicle on our dangerous, car-dominated roads — which isn't ideal, experts say, but at least doesn't hold bike- and scooter-share providers liable for our bloody transportation culture, which most micromobility companies say they're working to reform.
And if AB 1286 passes, the private automobile — the mode most responsible for our traffic-violence crisis — may be among the only modes of transportation left. That's because without liability waivers, liability-insurance companies won't be able cover scooter and e-bike providers — and because California cities require micromoibility companies to carry that insurance, Lime, Bird and the like would be forced to shut down.
In a letter obtained by Streetsblog, insurance company Apollo Syndicate management confirmed that "if passed, the immediate effect of AB 1286 would be that Apollo would not be able able to insure the micromobility industry in California for the foreseeable future." Apollo provides insurance for almost every scooter company in the state, including Lime, Bird, Razr, Spin, Jump and more — and industry leaders say that, contrary to the claims of the bill's proponents, there simply aren't any insurance companies that would cover a micromobility company that fails to secure rider waivers, even if the company pays more for its policy.
Bad timing or bad faith?
The news of the potential shutdown couldn't come at a worse time for California, which is struggling to contain the single largest COVID-19 outbreak in the nation and help residents who are nervous about contracting the virus on public transportation access solo modes. Until recently, rental scooters and bikes seemed poised to be a big part of the state's pandemic response — but AB 1286 could end that.
In a letter to Senate President Pro Tempore Toni Atkins obtained by Streetsblog, a coalition of micromobility providers and safe streets nonprofits begged state leaders to see the bigger picture:
"Riders have shifted their transportation habits to micromobility, particularly among lower-income essential workers, and are taking many more trips, particularly where transit services have been cut. Other cities around the world have recognized this phenomenon and are rushing to expand access to clean, socially distant micromobility. But AB 1286 would instead legislate it out of existence, sending California down a regressive path and adding tens of millions of car trips each year to our cities’ streets."
But industry insiders suspect that another statewide disaster might be influencing the timing of the vote: the California wildfires. After months of contentious debate in early 2019, AB 1286 was left to languish in the Senate judiciary committee in June 2019 — before being abruptly put to a committee vote last week, right as the state was in the midst of battling multiple historic blazes.
The vote also came just two days before news broke that Lime and Bird had been named in two mass tort lawsuits alleging the companies had failed to properly maintain their scooters. Nearly 90 riders from cities across the country allege the companies committed negligence that contributed to crashes in which they were injured; the lawsuits have yet to go before a judge, but similar claims would undoubtedly be far easier to prove in the future if riders were not required to sign liability waivers before they hit the road.
Other elements of AB1286 seemed aimed at increasing potential payouts for ambulance chasers and their clients and expanding the scope of potential injury lawsuits in the micromobility sector. The bill would also require mobility providers to carry at least $1,000,000 in liability insurance "for each occurrence for bodily injury or property damage" — an amount that would double what the companies pay, if they even could secure insurance without requiring riders to sign waivers.
Who's to blame when a scooter crashes?
Without advocate pressure, AB 1286 could be passed by the Senate before the legislature adjourns on Aug. 31 — and, if it does, experts say it could upend our national conversation about who we should hold responsible for traffic violence. That's because the bill would take a toxic belief that many road users implicitly hold — that sustainable transportation users (and by extension sustainable transportation providers) are responsible for their own deaths when they choose to travel on car-dominated roads — and solidify it into a legal precedent.
That's the exact opposite of the way countless U.S. communities have rewritten their laws to exempt drivers and automakers from liability — even when dangerous vehicle design or driver behavior play an indisputable role in a roadway death. Cities are even less likely to be held liable for bad road design that contributes to crashes.
But advocates outside the corporate world stressed that they think micromobility should bear some responsibility for keeping riders and other road users safe — and that the current waiver system does not insulate corporations from being held accountable for gross negligence.
"To be clear, CalBike will always protect the rights of shared bike and scooter riders to sue the providers for damages caused by the negligence of the provider," said Dave Snyder, executive director of the California Bicycle Coalition in a letter to the chair of the Senate Judiciary committee. "The right to seek compensation for damages caused by faulty brakes, for example, must be preserved, in order to assure these devices are maintained with safety as a priority. Thankfully, existing law, including decades of jurisprudence, already provides this assurance; no insurance waiver may excuse a provider from liability for causing injury due to a faulty brake or device. "
Assembly Bill 1286, by contrast, would "protect" scooter and e-bike riders from crashes only insofar as it would remove micromobility from the streets — all but insuring that those riders will shift to driving for more of their daily trips if they can afford it.
"This will imperil our ability to provide this transportation resource to low-income people who are most in need of affordable public transportation options," said Snyder. "It’s unnecessary for shared bikes considering their exemplary safety record."
For now, advocates are focused on defeating AB 1286 — and then on continuing the crucial conversation about how to hold liable a complex transportation system that claims far too many lives each year.
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