A Guide for Attorneys
In this series on electric scooter accident claims, previous articles explored how fault is determined in scooter accidents, as well as themes commonly found in scooter companies’ user agreements. Here, we’ll conclude by sharing insights regarding collecting evidence related to a case, what you might be asked to provide after initiating a claim, and what you can expect to encounter during the claims process.
As we discuss evidence collection in this article, we should be mindful that scooter accidents can spiral into many directions. Scooter claims can be incredibly complex. Scooters can fail, riders can run into cars, and cars can run into riders.
For the sake of simplicity, we will confine this discussion to product liability — scooters that have malfunctions, resulting in rider injuries. This is the territory of product liability claims, where the scooter company is the defendant in a case. We will focus on what happens when a scooter company is responsible, and what remedies attorneys and their clients have available to them.
When working on an electric scooter accident claim, attorneys frequently encounter the problem of evidence collection. In a scooter accident case, the critical piece of evidence is the scooter that was involved in the client’s accident.
Locating and obtaining the client’s scooter can be extremely challenging for two reasons.
- First, rental scooters are in a state of constant turnover. They’re routinely put into, and taken out of, circulation by companies and individuals who work on behalf of scooter companies as contractors. Scooters are used, collected, recharged, and put back on the street.
- Second, because they’re constantly in use, scooters do not last long. A review of scooter usage in Louisville, Kentucky in late 2018 showed that the average lifespan of a shared scooter was just 28 days.
- Third, it’s common for injured scooter riders to contact attorneys about their accidents well after their accidents have occurred. By the time you’re contacted, the defective scooter may have been serviced and put back into circulation multiple times.
With this said, when you’re working on a scooter accident claim, your evidence can disappear very quickly. If a scooter is damaged or involved in an accident, a scooter company might try to find that scooter through the GPS, remove the scooter from circulation, repair it, and redeploy it.
Finding the Scooter
As an attorney, knowing that you are working against the clock, how can you gain access to the scooter?
For starters, you should send a preservation letter to the scooter company, just as you would in any other personal injury claim. Send the letter by certified mail, FedEx, or UPS, so that you can track your letter and ensure it was received.
From there, be sure to identify the date and time of the ride. Ask your client to give you that information. Ask to see their app. Sometimes, ride information can be downloaded. Scooter company apps are generally good about saving all of this information. You can certainly take screenshots of the rides’ dates and times, and try to memorialize that information, so you have documentation of when the ride occurred, where the scooter was picked up, where the client rode it, and where it was eventually dropped off.
Photographs of the scooter after the accident also can be helpful. Especially useful are the identification numbers on the front of the scooter — right above the front wheel — or the scooter’s QR code. That information can help track the scooter’s current location.
Keep in mind that many, if not all, of the large scooter companies now collect robust data on their inventories. Therefore, it’s not impossible to determine whether a repair was performed on the scooter involved in your case.
Scooter companies most likely will have maintenance records on the scooter your client used. However, they will not turn these records over to you until you arbitrate and have subpoena power through the arbitration process. If you ask them to preserve their records, they may be available to you when you need it.
Witness statements are critical to pursuing electric scooter accident claims. We’ve had a lot of claims come to us in which people were riding with their friends, but no one remembers exactly what happened, and no one actually saw the accident. Sometimes, the injured rider is behind the group when he or she falls, or encounters a dangerous condition. In these instances, there’s no viable statement that can be provided by any witness.
With this in mind, it’s critical to know who was with the rider at the time of the accident. Did anyone see the accident? Sometimes, the accident can be captured on video. Surveillance video is almost everywhere now. Do what you can to locate sources of surveillance video, which will be extremely helpful in explaining what happened and how injuries occurred.
Most of the time, when people are injured by some sort of accident that occurs on a scooter — unless it involves an automobile or maybe another person or something to that effect — people do not call the police.
Many of the potential claims we receive are single-rider accidents. People are injured because of a faulty brake or wheels; sometimes, they hit a pothole and go end-over-end. These types of accidents do not warrant police reports. For this reason, you cannot rely on police reports to be the saving grace that gets you the information you need as an attorney to pursue these claims.
In sum, the client will have to do much of the hard work regarding documenting the accident, so that you can assemble a clear narrative and make an adequate claim for the injured rider.
When you pursue a claim, it will be fairly common for scooter companies to respond with a request for a set of information, including:
- Your client’s name and address, along with the username or email address associated with client’s account. This way, the scooter company can verify that your client rode a scooter at a given time.
- Your client’s date of birth and Social Security number. As a matter of practice, at Negretti & Associates, we do not reveal our clients’ Social Security numbers. We may disclose the last for digits, for indexing purposes.
- Medicare and Medicaid disclosure forms.
- A description of the injuries, along with medical bills and health records.
- A statement of loss — an account of what actually happened and how it happened, including photographs of the loss itself or the injuries to the rider and any witness information.
After providing this information, you’ll most likely be contacted by the scooter company’s insurance carrier. They will seek to have a conversation with you, asking to confirm the indexing information listed above.
Failure to Warn and Manufacturing Defects
All user agreements have one thing in common — they have detailed disclaimer language that says that the scooter company is not responsible to the rider if he or she is injured. The language shifts the burden to the rider to be responsible for any injuries suffered while on a scooter. According to these disclaimers, the rider assumes risk. The rider is expected to understand how dangerous scooters can be. If you’re hurt as a rider, it’s not the scooter brand’s fault, and you won’t have a claim.
This considered, if disclaimer language shifts risks upon the rider, how do you bring about a claim?
When you’re pursuing a claim against a scooter company, you’re essentially making a product liability claim, under the theory of failure to warn or the theory of manufacturing defect — potentially in the capacity of a design defect. This is where you can pinpoint negligence on the part of the scooter company.
Regardless of the complexity of scooter companies’ user agreements, or whether these agreements shift the burden of risk upon the rider, there remains the question of whether people are being properly educated when they’re agreeing to use scooter apps.
To their credit, some companies have videos showing you how to ride their scooters properly, while others encourage wearing a helmet. (Notably, they don’t require helmet use, even though local and state laws might mandate that riders must wear helmets.)
Still, there may be gaps in these tutorials. They may not address how to use the scooter’s brakes or mention how wheels may be too small to negotiate curbs and potholes on city streets. When you take everything into consideration, you’ll find that riders may not receive comprehensive tutorials about scooter usage.
The Mindset Required to Pursue a Claim
If there’s any one thing that I’ve learned from my experience in dealing with scooter claims, it’s that you have to be really diligent in your approach. You have to be really smart about your investigating style and how you look for evidence.
Likewise, you have to set reasonable expectations with your client. This may require a very up-front, candid conversation about how complex and difficult scooter claims are, because of the nature of scooter companies’ user agreements.
Ultimately, be aware of what you’re up against. You’ll find that scooter companies are willing to be fair. They really want people to enjoy their scooters, and their hope is that people will do so without incident. Scooter companies and their representatives will demonstrate a willingness to engage with you and have a conversation.
You may find that they are willing to resolve a case with you, through arbitration or litigation. That might be what you and you and your client want.
Conversely, you may get into a situation where this claim cannot be resolved without litigation or arbitration, without some sort of legal remedy. If you find yourself in this situation, give Negretti & Associates a call. We’ll talk with you about what we’ve dealt with in the past and share our playbook to help you. At the same time, if you want to get us involved to try to help you and your client, we’re happy to do that as well. Call us at (602) 531-3911.