Wednesday, June 19, 2019

Do the Rules of the Road for Chicago's New Electric Scooters Provide the City with Protection at the Expense of Riders?

Two Electric Scooters parked next to the bike lane on Milwaukee
Avenue in Chicago's Bucktown neighborhood on June 19, 2019.
Photo by Brendan Kevenides

The e-apocalypse is upon us, or car-mageddon is set for roll back.  Maybe it's neither, or both.  Personal perspective matters a lot, but whether you think that they will create an unsightly mess or help reduce our city's over-dependence on cars, what is undeniable is that electric scooters have come to Chicago.

On June 15th the City allowed 10 different scooter companies to place a total of about 2500 electric powered scooters within a 50 square mile area on the West, Northwest and Southwest sides of the city, according to The Chicago Tribune.  To use one all you need is to download the scooter company's app to your smart phone, scan the scooter with your phone and go.  I had the opportunity to ride electric scooters from Bird and Lime earlier this Spring in another city and they are a blast to ride.  Simple, fun and efficient.

While riding one may produce a euphoric feeling of freedom, there are rules for operating an e-scooter in Chicago.  To qualify as an e-scooter, or "low-speed electric mobility device," a device must not have pedals, be no more than 26 inches wide, weight less than 100 pounds and be powered by an electric motor that can travel at no more than 15 miles per hour. Section 9-4-010.  The devices are defined much differently than are e-bicycles, referred to in the ordinance as "low-speed electric bicycles," and it is important to note the distinction.  Scooters must be equipped with a warning bell, a front white light, and a rear red light visible from at least 500 feet away, and hand and foot brakes, according to the permit requirements set forth by the City of Chicago.  As for the rules of the road, all "that apply to the operation and parking of bicycles shall also apply to the operation and parking of low-speed electric mobility devices." Section 9-52-130.  The rules that apply to bicycles regarding right of way, turning and stopping, also apply to e-scooters. 

There is, however, an important difference between rules applying to bikes and electric scooters when it comes to where they may be used.  Since 2011 the City of Chicago has installed many miles of marked bicycle lanes.  However, when a bike lane is present a person riding a bicycle is not required to use it.  They may ride in the street outside of the bike lane.  On the other hand, the City has apparently mandated that, "scooters are permitted to be operated only on the City's bike lanes or paths."  (Emphasis added.)  In the City of Chicago Requirements for Scooter Sharing Emerging Business Permit Pilot Program document, scooters vendors are required to "acknowledge and transmit to their customers" this limitation on use.  "Where there is no bike lane or path, scooters are allowed to be operated on city streets," according to the document.  This means e-scooters may be used on roads without a bike lane.  "But," the City document continues, "such streets [without bike lanes] are not intended to be used by scooters." (Emphasis added.)  That last part was probably written for lawyers like me.  What it means is that the City of Chicago is attempting to protect itself from liability should a scooter rider become injured after striking a road defect like a pot hole located outside of a bike lane.  With this language about intent the City is attempting to expand the Illinois Supreme Court's ruling in Boub v. Township of Wayne to apply to scooter riders.  That is a bad thing for scooter riders.

In its now infamous decision, Boub v. Township of Wayne, 183 Ill.2d 520, 702 N.E.2d 535 (Ill. 1998), the Supreme Court held that bicyclists are permitted but not intended users of Illinois roadways, unless the road at issue is specifically designated for bike traffic, e.g. with signs, markings, etc. Unless a roadway is so designated, a local municipality is completely immune from liability for a bicyclist's injuries caused by roadway hazards.  An Illinois municipality may be liable for injuries caused by a defect in a bike lane that it had notice of, but not for injuries caused by a defect outside of a bike lane, even if it knew of the danger posed.  Of course the case did not address electric scooters as they did not exist when the decision was handed down in 1998.  The City of Chicago's attempt to expand Boub to include e-scooters may end up being significant.  Even more so than bicycles, electric scooters, with their small wheels, lack of suspension and top heavy weight distribution (with a rider) are prone to crashing when they strike a road defect.  Lousy, pot holed and cracked streets, like in Chicago, are dangerous places for these devices.  A study published earlier this year which looked at e-scooter rider injuries in Los Angeles concluded that the devices were more dangerous than biking or walking.  An even more recent study, published in May by the Center for Disease Control and Prevention "found one in three riders were injured on their first ride" on a scooter.  In light these known dangers it is discomforting, to say the least, that the City of Chicago is inviting thousands of electric scooters to operate on our rough, pockmarked streets while attempting to limit its responsibility for causing injury where it has failed to provide safe infrastructure in which to ride.  Electric scooters are to be welcomed in Chicago.  To the extent they reduce car dependency, they are a net positive for our city.  (And did I mention that they're fun as hell?!)  But the right approach is for Chicago to do all in its power to make our streets safe for their use.  If the City is immune from taking responsibility for causing an injury it will have little incentive to fix its infrastructure.  It is wrong for Chicago to protect itself while failing to protect those it has invited to use these new devices.

If you think the better option for operating an electric scooter is on the sidewalk you best think again.  Doing so is illegal for adults.  To ride a bike or e-scooter on a sidewalk a rider must be under 12 years of age.  However, you must be at least 18 years of age to rent a scooter.  Individuals who are 16 or 17 years old may do so only with the consent of a parent or guardian.  So the bottom line is that no one should ride a scooter on a sidewalk in Chicago.


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