Who’s on the hook if e-scooter riders hurt pedestrians?

Many consumers facing sharply rising prices for automobiles, gasoline and auto insurance are opting to switch from four wheels to two. Electric standup scooters that use small motors for motive power have become popular with people looking to get around on the cheap.

“I see it all the time. I see e-scooters riding on sidewalks. I see riders without helmets, and that’s a big concern,” said Tim Crljenica, a partner at law firm Thomas Gold Pettingill. “If this person on an e-scooter wants to be careless about their own safety, that’s their choice. But what happens when they hit a pedestrian? I use Toronto’s sidewalks and e-scooters frequently speed by me, and I’m thinking, ‘What if they hit me or another pedestrian?’

“If an innocent person without insurance is hit by an automobile, the person can rely on the automobile’s insurance and accident benefits. A person hit by an e-scooter is probably not going to have access to any insurance or no-fault benefits through the e-scooter owner. And even if the injured person has their own automobile insurance, given that the e-scooter is not considered an automobile, statutory accident benefits are not going to be payable.”

Coverage inconsistency

Right now, how insurance coverage applies to E-scooters is blurry. For example, it’s not clear if homeowner coverages for e-bikes — conventional bicycles with motors to help riders climb hills — extend to e-scooters. “I suspect the liability is covered under the property policy as there is no specific exclusion for these,” one Ontario broker speculated. “The only exclusion that is close is e-bikes that go more than 32 kilometres per hour.”

Another said, “It’s a common exclusion of a homeowner’s policy to exclude damage or injury caused by the operation of a motorized vehicle. But I’m not sure if there’s wording surrounding e-scooters specifically.”

An auto policy, “we believe, would not respond to a claim involving an e-scooter,” said Irene Bianchi, president and CEO of Peel Mutual Insurance Company. “It is likely that an e-scooter would fall within the definition of ‘personal transporters’ within the definition of motorized vehicles in a homeowner’s policy of insurance.

“We believe that coverage for the e-scooter itself (i.e., for damage or loss) would fall under the homeowner’s policy, and also that the liability coverage for the scooter would fall under the same policy.”

But, Bianchi noted, “the scooter [would] need to adhere to municipal guidelines so it may (depending on weight, specifications, capability, etc.) be classified as a motor vehicle. In that case, it would be excluded from the homeowners policy.”

Law of the land

In Ontario, e-scooters can only be driven on private property or in municipalities opting into a provincial pilot project running until the end of 2024. Several cities participating in the pilot project, including Ottawa, Hamilton and Guelph, altered their bylaws to limit motor size and restrict speeds. In Ottawa, for example, motors are capped at 500 watts with a speed restriction of 24 km/h for e-scooters.

Toronto opted out of the pilot because “accessibility barriers, safety concerns and insurance issues remain unresolved for privately owned and rental e-scooters,” according to a report from the city’s Transportation Services department. “The current regulations that prohibit the use of e-scooters in public spaces make sense as they will prevent an increase in street and sidewalk-related injuries and fatalities, and their associated costs.”

But existing regulations don’t appear to be actively enforced. What’s more, news reports of e-scooters travelling on sidewalks and injuring pedestrians are increasing. And while their owners have the option to purchase third-party liability insurance, and many e-scooter sales websites recommend buying coverage, Crljenica suspects most of the vehicles are uninsured.

“Unless that scooter was specifically insured with third-party liability, which is unlikely, that injured pedestrian will have next to no recovery, even though they’re not the ones that took on the risk. They are just using the sidewalk, and they’re being put at risk by e-scooter drivers,” he said.

“That said, it is very hard to sue a municipality for policy decisions about how they enforce certain bylaws.”

He added policymakers need to act because the risk is increasing.

“There’s risk to the people using e-scooters, but also to the innocent pedestrians who are not consenting to being exposed to this risk,” he said. “An injured person can, of course, sue the e-scooter driver and get a judgment against them. But if the e-scooter driver doesn’t have assets, the judgement will be a useless piece of paper.”

This story is excerpted from one that appeared in the December 2023 -January 2024 print edition of Canadian Underwriter. Feature image by iStock.com/Janis Abolins