[author: Sarah E. Hansen]*
“Hey little girl, I need to borrow your…hoverboard???” When Marty McFly borrowed a hoverboard in future 2015 to flee from his arch-nemesis, Biff Tannen, in Back to the Future 2, for audiences in 1989 theaters, this was “space-aged” technology considered to be comically out of reach. Fast forward, and our roads are now inundated with a number of new electronically powered small transport machines, referred to as “motorized micromobility devices” (MMDs), now often unregulated and available to persons of a much larger demographic. The presence of an increasing number of these MMDs on the roads presents new and different challenges for attorneys defending drivers, particularly in the transportation and trucking industry. New issues include the status of MMDs under states’ traffic laws, how claims are handled for purposes of no-fault coverage, and product liability issues. It is critical that trucking attorneys who handle a collision involving an MMD understand what they are and how they are used and are up to speed on both the legislation that may apply in their jurisdiction and the unique issues that may arise in their case.
Types of MMDs and How They Work
The most visible MMD at this time is probably the electric bicycle, or “e-bike.” While efforts to develop and market e-bikes date back to the 1990s, the popularity of e-bikes has taken off in recent years, particularly among younger adults who see the mode of transportation as more economical and environmentally friendly. Already a popular mode of transportation in European and Asian-Pacific markets, e--bikes are now trending in the United States due to factors such as the pandemic-related slowdown in vehicle manufacturing, increased remote working and less need to commute, spiking gas and insurance prices, and a greater push to reduce the carbon footprint, fueled by social media and the Conscious Consumerism movement. A proliferation of lithium battery factories tied to development and marketing of electric vehicles has trickled down, driving down prices of batteries for other uses including MMDs, and making batteries more energy dense, thus allowing for longer use before recharging.
Not only have e-bikes developed to be faster, more durable and dependable modes of transportation, they have become more economically feasible, making them a viable alternative to motor vehicles for many individuals. Base models run for prices of $1,000 or less, with mid-range options around $3,000. The cost to charge the battery is significantly lower than gas prices, estimated between $30 and $50 a year, often less than a single tank of gas in even a small vehicle. Insurance costs are not even a consideration in most locations.
According to an article in the Wall Street Journal in 2022, which chronicled the story of a Denver couple who chose to turn in their car in favor of a pair of e-bikes, e-bike sales more than tripled between 2019 and 2021. Even when the demand for conventional bikes fell as the pandemic waned, the sale of e-bikes remained strong. Mims, Christopher, “The Other Electric Vehicle: E-Bikes Gain Ground for Americans Avoiding Gas Cars,” WALL STREET JOURNAL (Aug. 6, 2022). In fact, the sale of e-bikes is outpacing the sale of electric cars at almost double the rate. At the same time, roadways in US cities tend to be less bicycle- and pedestrian-friendly than those in Europe, where e-bikes have long been a staple in transportation. This has likely contributed to a statistical increase of pedestrian and cyclist fatalities in post-pandemic years, to some extent.
Like the standard vehicle, e-bikes can come in many models with many car-like features, including rearview mirrors, tail and brake lights, a throttle, and typically have “fat” tires which are compatible with more aggressive road driving. They can be purchased as a complete e-bike, or they can be made by converting a regular bicycle with a kit. Conversion kits currently run as low as $200 and allow for regular bicycles to be transitioned into pedal-assist models at home, on your own. Different kits work in different ways, with some containing a motor that turns the wheel mechanically, and some replacing a regular wheel with an electric one.
E-bikes are traditionally classified into three different categories. Class 1 e--bikes are pedal assist-only bicycles, where some amount of operator effort is required, with a maximum motor power speed of 20 mph (although actual speed may be higher when motor power and pedaling are combined). Class 2 e--bikes can be used as a pedal assist but also have a throttle so they can be operated without user effort, up to a motor power speed of 20 mph. Class 3 e--bikes also have a throttle but allow for higher speeds than the 20-mph motor power, typically up to 28 mph. All three classes are distinguishable from mopeds, which are considered to be limited-use motorcycles and require a driver’s license to operate in most U.S. states. By contrast, a driver’s license is not needed in most states for e-bikes, and in some it is dependent on the class of e-bike. Registration may be needed with payment of a fee, but insurance is usually not. Helmet requirements and minimum user age also vary state-to-state. Maximum speed limits may apply and can vary by locality.
Another popular MMD which is showing up on the roads with increasing popularity, although not seeing the same exponential increase in sales as the e-bike, is the motorized or electric scooter. It is a stand-up scooter with handlebars and a floorboard, powered by either a small engine or electric hub in its front and/or rear wheel. The rider twists the throttle which propels the electric scooter forward, although some need a push assist to start moving. The average top speed for electric scooters is 26 mph. Several major cities in the United States have electric scooters that can be rented for easy transportation, including Portland, Austin, Denver, San Francisco, and Atlanta. Electric scooters come in all shapes and sizes, including the popular “Segway,” an upright self-balancing scooter. In some situations, they are being used by riders with mobility impairments to provide an easier way to travel long distances in lieu of motorized wheelchairs. Like e-bikes, the regulation of electric scooters varies by jurisdiction, with most states permitting the use of electric scooters without licensing, registration, or insurance. Age limits, speed limits, and helmet regulations for electric scooters may also vary from state-to-state and sometimes municipality-to-municipality.
Hoverboards are motorized self-balancing scooters, where riders steer by shifting their weight subtly with their feet. Hoverboards do not have handlebars like an electric scooter and are harder to navigate, especially on uneven ground. Dangers exist due to the higher possibility of operator error and a more significant learning curve, their speed, and stand-up operating position. Because of these issues, hoverboards have been banned outright in some locations, including New York City. However, they are permitted for use in the rest of New York State, where they are considered to be an “electric personal assistive mobility device,” defined as a “self-balancing, two non-tandem wheeled device designed to transport one person by means of an electric propulsion system” See New York Vehicle & Traffic Law §114-d. Under that law, in New York State, operators weighing 170 pounds or less can use the device if operated at less than 12.5 mph, on sidewalks. New York City, however, has decided to prohibit the use of hoverboards entirely. California has also implemented regulations on the use of hoverboards, including a minimum age of 16 and an absolute requirement of helmet usage. See California Vehicle Code Section 21291.
Liability Considerations When an MMD Is Involved
Intuitively, one might think a person operating an e-bike or electric scooter is governed by the laws for operating a regular bicycle, or perhaps a pedestrian, but you should not make this assumption. MMDs do not fall cleanly into one category. The classification of an MMD for purposes of state traffic laws may be ill-defined, if defined at all. The type of MMD involved in your case may not be addressed by the legislature in your jurisdiction. While states are enacting laws with increasing frequency pertaining to specific MMDs, especially as to e-bikes, it is going to take some time for state traffic laws to catch up with this new technology.
As of August 2023, 48 states have adopted some form of designation for e-bikes, with 41 states employing the three-class system discussed above, including: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Seven states do not use the three-class system, but define e-bikes similar to traditional bicycles: Hawaii, Kentucky, Montana, North Carolina, Oregon, Pennsylvania, and South Carolina. Two states – Alaska and Rhode Island – currently define electric bicycles as motorized vehicles, which may require license, insurance and/or registration.
It is important to know what rules of the road are applicable to the MMD involved in the case and to determine how those rules apply to the operator. People for Bikes, a non-profit organization campaigning for better infrastructure and policies for bicyclists, maintains a spreadsheet detailing each states’ current laws and regulations pertaining to e-bikes, which can be publicly accessed at this website: https://www.peopleforbikes.org/electric-bikes/policies-and-laws. If you live in a jurisdiction that has not passed legislation addressing the MMD involved in your lawsuit, look to other jurisdictions which have enacted a law for the MMD, or make an argument based on similar MMD that is regulated in your state. If an e-bike is involved, the class of e-bike might limit the location where the e-bike can be operated (i.e., on the roadway versus on a trail, on certain roadways, or it may be prohibited in certain municipalities), so it is important to understand the rules that apply to your accident scene. It is also important to understand the applicable helmet requirements in your state, so you can assess a potential comparative or contributory fault argument. Again, it may depend on class of e-bike and user age.
With the sudden increase in MMDs’ popularity, there are more new and inexperienced riders on the road. This means operator error may be a significant possibility and something that should be explored. In discovery, demand all purchase records for the MMD that reflect the date of purchase, the seller, any instructions that came with the MMD, user warnings, and other relevant information. Determine how long the person was using it, and the steps they took to learn how to use the MMD. Request information about prior accidents on the MMD, which could indicate that they did not know how to properly operate it. Explore what kind of terrain on which they typically used the MMD, to determine whether they were familiar with using it outside of a specific area or zone (e.g. in a city versus suburban or rural roads). Utilize the discovery devices at your disposal to gain a firm understanding of the rider’s experience and history with the product.
Also determine whether the MMD was well maintained. If the rider does not have the maintenance or repair records, subpoena them from the manufacturer or repair shop to determine how often the MMD was maintained, what work was done to it, and if there were any persistent issues. If such records are not available, there may be an argument that the owner-operator of the MMD failed to properly maintain the equipment in a manner that contributed to the happening of the accident. As discussed below, there are potential product liability issues that may arise when an MMD is involved, but as with every motor vehicle case, you will want to determine if poor maintenance, a broken part, or a defect may have played a role in the accident you are defending.
Another consideration presented by MMDs is the rider’s age, as these products are becoming ever more popular with a younger demographic. The American Transportation Research Institute (ATRI)’s 2020 study, Understanding the Impact of Nuclear Verdicts on the Trucking Industry (available at: https://truckingresearch.org/2020/06/understanding-the-impact-of-nuclear-verdicts-on-the-trucking-industry/) identified the involvement of children as one of the common factors observed in nuclear verdicts. Not only do cases involving the injury or death of a child naturally garner more sympathy from jurors, but it is also harder to blame the child for their actions and can come across to a jury as being callous or unfeeling, making these kinds of cases more difficult to defend at trial.
MMDs have lower minimum age limits than traditional motor vehicles, or in some cases, no age limit. With e-bikes, the most regulated of the MMDs, most jurisdictions have a minimum age limit between age 12 and 16, sometimes depending on the class of e-bike. In seven such jurisdictions, there is no age limit at all on any class of e-bike. MMDs are also showing up with increasing frequency on college campuses, making on-campus roadways more congested and difficult to navigate. In these cases, the age of the user may have a significant impact on the potential risk associated with the case and the possibility of a higher verdict.
No-Fault Considerations When an MMD Is Involved
Another consideration that may arise in a case involving an MMD is no-fault liability, in a state with no-fault laws. In no-fault states, each driver’s vehicle insurer pays medical claims after an accident, regardless of fault. No-fault states include New York, Michigan, Minnesota, North Dakota, Utah, Kansas, Massachusetts, Florida, and Hawaii. Kentucky, New Jersey, and Pennsylvania also have no-fault, but also allow drivers an option to choose between buying a no-fault insurance policy and a traditional auto liability insurance policy. The issue that arises is whether the other “vehicle” involved in your accident is not a car, but an MMD.In New York, for example, operators utilizing Class 1 and Class 2 e-bikes are treated like a regular bicycle and rider, and are entitled to no-fault payments under the involved motor vehicle’s insurance policy. Insurance Law §5103 states that every owner’s policy of liability insurance must carry no-fault benefits, which are mandatory, which cover not only the policyholder’s vehicle but “persons, other than occupants of another motor vehicle or a motorcycle, for loss arising out of the use or operation in this state of such motor vehicle.” These other “covered persons” include pedestrians and bicyclists, including Class 1 or Class 2 e-bikes, which reach a maximum motor speed of 20 mph. Riders of Class 3 e-bikes, however, are not considered to be akin to regular bicyclists under New York law, and would not be entitled to no-fault benefits.
Michigan law specifically excludes e-bikes from the definition of a “motor vehicle.” Michigan Compiled Laws §257.33. Like New York, in Michigan an operator of an e-bike is treated akin to a regular cyclist who is entitled to no-fault benefits. It does not appear there is any limitation on Class 3 e-bikes, which are permitted in Michigan subject to certain age requirements. This appears to be the same approach taken in other no-fault states where e-bikes are regulated, including Minnesota and Florida. As noted above, Hawaii, Kentucky, and Pennsylvania all treat e-bikes the same as regular manual pedal bicycles, without defining them by class.
However, in New Jersey, in a recent court case, the Superior Court of New Jersey determined that no-fault benefits were not applicable to the user of an electric scooter, applying logic which seems to indicate the same conclusion would be reached if the device was an e-bike or some other kind of MMD. In Goyco v. Progressive Insurance Co., 2023 WL 4345423 (Sup.Ct. 2023), in a decision issued July 5, 2023, the court held that Progressive Insurance was not required to pay personal injury protection (PIP) benefits to the insured who was using a Segway when he was struck by a motor vehicle. New Jersey law specifically defined the Segway as a “low-speed electric scooter” (New Jersey Statutes Annotated 39:1-1), and Progressive took the position that this meant that the insured was neither the operator or passenger of a motor vehicle, or a pedestrian. Id. at *1. The insured argued that New Jersey law treated traditional bicyclists like pedestrians for the purposes of no-fault, and that the same laws applicable to traditional bicycles should apply to a Segway. Id at *2.
The trial court in Goyco disagreed with the insured plaintiff, rejecting the statutory language treating electric scooters like bicycles for the purposes of the traffic law, stating that the traffic law was “not a part of the No-Fault Statute and is not controlling.” Id. The court looked instead to the definition of “pedestrian” as “any person who is not occupying, entering into, or alighting from a vehicle propelled by other than muscular power and designed primarily for use on highways, rails and tracks.” Id., quoting New Jersey Statutes Annotated 39:6A-2(h) (emphasis added). Stating that the operative term was “muscular power,” the court found that while a traditional bicycle might be considered akin to a pedestrian in that it operated solely off muscular power, an electric scooter did not, and thus could not be considered like a pedestrian under the no-fault law. Id. The trial court found that the insured plaintiff was not entitled to no-fault, and on appeal, the Superior Court affirmed on the same basis. Id.
The laws and rules applicable to MMDs are changing at a considerable pace, so it is important that you look into what the current rules and laws in your jurisdiction say with respect to the interplay between MMD legislation, particularly e-bikes, and no-fault.
Product Liability Considerations
In this age of new technology, where collision avoidance systems and fully or partially automated vehicles are becoming more prevalent, attorneys defending the trucking industry have become more accustomed to product liability issues seeping into traditional “motor vehicle accident” cases. A vehicle is just a product, and if the product fails, there may be another person or entity at which to point the blame. Similarly, an MMD is just a product, and product failure may cause or contribute to the happening of an accident when an MMD is involved. Understanding the potential product liability issues that arise in cases involving MMDs will help prepare you for when these issues may arise.
E-bikes (referred to as “low-speed electric bicycles”) have been defined and regulated at the federal level since 2002. Under Public Law 107-319, now codified as 15 U.S.C. §2085, e-bikes were established as consumer products subject to the Consumer Product Safety Commission, and must comply with conventional bicycle safety standards (16 C.F.R. 1512). From a consumer protection standpoint, they are governed by the same regulations that cover traditional, human-powered bicycles and are explicitly not considered a “motor vehicle.” They are not subject to National Highway Traffic Safety Administration vehicle standards. They are to be designed, manufactured, and tested like traditional bicycles for the purposes of complying with consumer laws, even though they may have components like those you would see with a car, motorcycle or moped, and are being increasingly substituted for “motor vehicles” as a standard mode of transportation.
As with every products case, expect there to be scrutiny over expert opinions, their qualifications, and their methodologies. You should make sure you choose an expert who is not only familiar with the product itself, but has researched its specifications and how it is intended to operate, who understands the standards applicable to the product, who has thoroughly researched its recall/failure history and is prepared to address, if applicable, the role that installation might play if the components are not OEM but replaced or installed as part of a kit. If there is any indication that something on the MMD may have failed in a manner that contributed to or caused the accident in question, ensure you have the appropriate expert present at any inspection who can evaluate and opine as to product failure. Be careful about relying on an accident reconstruction expert, who may not have the necessary engineering qualifications. Make sure you have the right person on board when walking into an inspection, because you may not get another opportunity.
While finding and choosing the right expert is important, it is equally important to ensure that expert’s conclusions reach a jury. This became an issue for the plaintiff in the case of Meyer v. Currie Tech Corp., 329 F.R.D. 228 (D. Neb. 2018), which involved an e-bike failure. In Meyer, the plaintiff had purchased an e-bike conversion kit sold by the defendant, Currie Tech, on Amazon, which he installed on a mountain bike he already owned. Id. at 231. One month later, the plaintiff was severely injured in a biking accident, and he blamed the accident on a failure with respect to the kit. Id. He commenced suit against Currie Tech asserting claims for strict liability, negligence and breach of warranties. As the case was approaching trial, Currie Tech sought to preclude or limit conclusions reached by the plaintiff’s various experts.
One of the major arguments was whether the plaintiff’s expert engineer properly set forth the methodology used or procedures set forth in the standards for the ASTM (American Society for Testing Materials) or NFPA (National Fire Prevention Association) as the methodology they relied upon in rendering their opinions for this case. The District Court agreed with Currie Tech, finding that the plaintiff failed to timely disclose their expert’s methodology and fully explain the basis and reasons for their opinions. Id. at 234. It held that the failure of the plaintiff’s experts to specifically cite the standards relied upon from the ASTM and NFPA prior to their deposition left the defendant without the ability to cross-examine them on those standards. Id. While the court decided not to preclude the experts entirely, remarking that the deficiencies did not amount to a “complete failure” on the plaintiff’s part, it culled the opinions that those experts could reach at trial, including the expert’s opinion as to the bicycle owner’s mechanical abilities and aptitude in installing the kit in question, a significant issue in that case. Id.
The opinions of the same experts were also attacked in Meyer under Federal Rule of Evidence §702(c) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), based on the argument that the experts failed to utilize a reliable methodology. While the court rejected defendant Currie Tech’s argument that the engineering expert’s inspection of the e-bike was not thorough enough, the court did find that one of the expert’s opinions “does cross the line from shaky to inadmissible.” Id. at 236. Specifically, the expert’s conclusion that “front wheel electric bicycle kits are inherently dangerous” was deemed unsupported by any reliable methodology. In precluding the expert from offering that opinion, the court noted that the expert had not done any research with respect to the market or accident history for front wheel electric bikes or conversion kits, but had simply argued from his “handling” of the e-bike, he did not find them safe. Id. The court rejected the foundation of this conclusion, noting he had only ridden an e-bike on one or two occasions and did not have enough to back up his opinion. Id.
There is also the possibility of other injuries, not simply those stemming from motor vehicle accidents, relating to the use of MMDs. Lithium-ion batteries used in MMDs can create a fire hazard and/or explosion when they fail. These batteries can go into “thermal runaway,” which is a phenomenon that happens when a lithium-ion cell enters a state of uncontrolled self-heating, which then dissipates into its surroundings causing chemical reactions that release further thermal energy, and can cause an internal short circuit and combustion reaction. See Barowy, Adam, “The Science of Fire and Explosion Hazards from Lithium-Ion Batteries,” FIRE SAFETY RESEARCH INSTITUTE (Jan. 27, 2023).
In March 2023, seven people were injured in a five-alarm fire in the Bronx stemming from the failure of a lithium-ion battery in an electric scooter. In the wake of this, FDNY Commissioner Laura Kavanaugh remarked about lithium-ion battery fires that: “These fires start quickly, grow rapidly, offer little time to escape, consume everything in their path, and are very difficult to extinguish.” See Moshtaghian, Artemis, “Scooter Lithium Battery Investigated as Cause of 5-Alarm Bronx Blaze, Fire Department Says,” CNN (March 6, 2023). These concerns are amplified with respect to lithium-ion batteries being used in MMDs, which are 50 times larger than the battery in a cell phone and can cause much larger and more dangerous fires. In 2022, the NYFD alone responded to more than 200 e-scooter and e-bike fires, which resulted in six fatalities. See Murphy-Kelly, Samantha, “Lithium-Ion Battery Fires Are Happening More Often. Here’s How to Prevent Them,” CNN (March 9, 2023). Attorneys handling first-party claims should expect to see these kinds of claims associated with MMDs and other e-mobility devices.
Another consideration to be prepared for is that you may end up with a jurisdictional headache if a product liability issue arises with respect to the injured person’s use of an MMD. According to the Wall Street Journal, the e-bike market in the United States mostly consists of imports, and there are few U.S.-based assemblers of e-bikes in the present time. See Mims, supra. The largest number of imported e-bikes are manufactured in China, which is also the largest importer of e-scooters and hoverboards. Obtaining jurisdiction over a foreign corporation may be difficult, either if Plaintiff sues a foreign manufacturer, or if you have to commence a third-party action for indemnification or contribution against a foreign corporation. Service of process may be possible through the Hague Service Convention (to which China is a signatory), but this can result in additional time, expense, and delay. Obtaining service over the foreign corporation, or even a default judgment, does not mean that you will ever get to collect on it, and enforcement under Hague is a major issue.
Conclusion
With the number of MMDs on the road increasing at an exponential rate, it is important for transportation attorneys to understand the unique considerations that are at play when these devices are involved in an accident with their client’s truck or bus. You cannot simply treat an MMD like a regular bicycle or scooter but need to recognize the unique considerations that stem from their involvement. It is important to carefully research and know the laws regulating the use of MMDs in your jurisdiction, which are developing and changing as Americans (particularly younger Americans) are increasingly relying on MMDs as a more cost-effective, environmental-friendly method of transportation.
* Sarah E. Hansen is a partner at Burden, Hafner & Hansen, LLC. She is an experienced litigator who focuses her practice on defending personal injury cases in the areas of trucking and automobile accidents, employment law, labor law, municipal law/governmental liability, premises liability, products liability and general negligence. Ms. Hansen has long been a member of the Steering Committee for DRI’s Trucking Law and Labor & Employment Committees, was Co-Chair of the Trucking Committee’s 2019 Trucking Primer, Vice Chair for the 2022 Trucking Committee Seminar, and is Chair of the upcoming 2024 Trucking Committee Seminar. Ms. Hansen speaks and publishes frequently on topics pertaining to transportation defense. She is a member of the Trucking Industry Defense Association (TIDA) and a member of her firm’s Emergency Response Team, providing on-site immediate response to catastrophic accident cases. She practices across New York in all state courts, as well as the Western District and North District Courts of New York.
