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.

    

Amsterdam Is Not A Model Cycling City

As the train crossed from Belgium into the Netherlands my excitement grew.  I sat forward to get a better look out of the window at the country side.  Then I saw them, beautiful, clean, pale red ribbons stretching through the low lying land.    They were bicycle paths; actually not so much paths as bicycle highways, long and inviting, stretching into the distance with a promise to take you wherever you wanted to go in breezy, smooth self-powered tranquility.  It looked like the Promised Land I expected.

The Netherlands is generally considered one of only a few places in the developed world where biking infrastructure is done right.  There the bicycle is viewed differently than most everywhere else.  The bicycle is transportation first and foremost, not a toy, not a fitness device, and over several decades the Dutch have built paths and bike lanes in the cities, suburbs and countryside to facilitate the safe and convenient use of bikes by average people to get from point A to point B.  In that nation there are actually more bicycles than people; that is 17 million inhabitants and 23 million bikes.  More than 25% of all trips made by the Dutch are traveled by bicycle.  In the Netherlands the city that most often comes up in discussions about how to do biking right is Amsterdam, a dense city of about 800,000 people in the north of the country.  Among bicycle advocates Amsterdam is El Dorado, a fabled gleaming city to which those desiring an enlightened and pragmatic approach to transportation should look.  Bicycle utopia was what I expected.  What Amsterdam turned out to be was altogether different, a bicycle dystopia. 

Bikes rule the streets of Amsterdam.  They are everywhere.  Motor vehicles are there too, but they crawl through the narrow streets in obvious disproportion to the bikes.  Drivers are greatly outnumbered and they seem to know it.  They crawl tentatively through the narrow streets in their metal boxes.  The people on bikes seems to recognize the power they have.  They ride confidently, young and old, with small children and without helmets.  Imagine that:  People on bikes feeling powerful in the face of the automobile menace.  This is surely a good thing.  But it also seemed a bad thing.  For me, my wife and my 11 year old daughter, biking in Amsterdam was a stressful, chaotic, generally unpleasant experience.  I expected carefree, but what I experienced over a week of riding in the city was widespread carelessness among a large number of biking Amsterdammers.  Frankly, I saw more bad biking behavior than I’ve seen in my many years of biking in the United States.  Many people biked while staring at their mobile phones, paying little heed to pedestrians and other people on bikes.  Lights were rarely used at nighttime.  Red lights were run with abandon.  Many people thought nothing of riding the wrong way down one way roads.  Often a faster biker would pass within millimeters to get by me as I pedaled in an already narrow bike lane.  On one occasion, while pedaling slowly along the right side of a bike lane in the crowded Amsterdam Centraal area, a middle aged man passed very closely to my left.  Sitting on the rear rack of his bike was a woman holding a bag or purse.  When he attempted his pass one of the straps of the woman’s bag looped around my handlebars and pulled her off the bike and into the street.  She landed in front of a car which, thankfully, was moving slowly and was able to stop in time.  Somehow I was able to stay upright.  However, another bicyclist behind me struck the fallen woman and crash hard to the ground.  After apologies were offered and efforts made to make sure everyone was okay (all seemed to be), I was left wondering why Amsterdam is not the bike city I had expected.

There were several issues I noticed that seem to contribute to make Amsterdam a challenging biking city.  First of all, it is tremendously congested with both residents and tourists, all of whom use bikes to get around.  The busiest bike routes in Amsterdam are simply overwhelmed by the numbers.  In addition to the people that live in the city, 20 million tourists visit it yearly.  These tourists, from what I observed, can and do easily rent bikes from one of the bike shops that seem to be on every other corner.  One Dutch study that looked at biking congestion in Amsterdam concluded that, “The cycle lanes and paths in the city are too narrow to safely accommodate this enormous stream of cyclists and busy intersections become congested.”  Biking in Amsterdam has grown tremendously over a fairly short period of time.  In the 20 years prior to 2012, the number of bike trips taken in Amsterdam has increased by 40%.  One has to wonder if the increased popularity of biking in that city, and the Netherlands as a whole, has outpaced the ability to accommodate them.  The infrastructure is not awesome.  This is the second thing that made my experience unpleasant.  The roads and bike paths are difficult to navigate.  Often, the road, sidewalk and bike path blend subtly into one another.  I often found that I was not sure if I was in the street, on a bike path, or on the sidewalk.  Also, street names are not well marked.  If you are a local and know instinctively where to go you have a clear advantage.  But having to rely on street signs that are not obvious, along with spotty internet service, while riding a bike in a large crowd is pretty stressful.  Once you get where you are going, good luck finding a place to lock your bike.  Bike racks in Amsterdam are inadequate to an absurd degree.  The few that exist are piled high with thickets of bikes at all hours of the day and night.             

These two photos show the bike parking situation commonly encountered in Amsterdam. Photo by Brendan Kevenides

This is a big problem.  Amsterdam residences tend to be small, and out of necessity people tend to leave their bicycles outdoors when not in use.  If a secure lockup spot cannot be found people just lock up their bike’s wheels hoping that this, plus the hefty weight of the typical Dutch bike, will discourage theft.  But bike theft is rampant.  One local I spoke with said she had three bikes stolen within a space of six months.  While there for only a week I had no trouble picking out a person suspiciously walking up to random strangers on the street asking if they wanted to buy “his” bike.  No wonder people tend to ride some pretty junky looking bikes.  Having a “nice” bike makes little sense in light of the probability of having it stolen.

Does an overwhelmed biking infrastructure account for the rampant bad biking behavior I witnessed?  It is hard to say.  I saw a lot of people on bikes doing a lot of stupid stuff.  But I see a lot of drivers in Chicago do a lot of stupid stuff too:  Texting while driving, running stop signs.  Perhaps dominance leads to apathy regardless of the mode of transportation.

 

The photo on the left shows two bicyclists approaching each other in an intersection at right angles. It’s not clear to me who has the right of way. Fortunately, a crash was avoided.  On the right, a young person stands on the rear of a bicycle being pedaled by an adult.

Many Dutch people looked quite comfortable hauling children, groceries and pretty much anything you can think of by bike.  Considering the sheer numbers of people, I was surprised that I heard virtually no angry shouting between road users.  But surely, this outward calm demeanor among Amsterdammers is unwarranted.  In 2017, in the Netherlands as a whole, of the 613 people killed in traffic crashes, 206 of these were bicyclists.  Between 2000 and 2013 cyclists in Amsterdam accounted for 28% of all traffic deaths in that City, making it the Netherlands’ most dangerous biking city.

Amsterdam is disappointing as a biking city.  Bicycles are ridden haphazardly and are strewn around the city like junk.  Every year some 12,000 to 15,000 of them are fished out of the canals.  This is not a model for biking in the United States.  It will probably take generations for biking in any U.S. city to reach the level of popularity it has in Amsterdam.  As biking grows here it is important to keep the Dutch experience in mind though.  A safe and pleasant biking experience requires an infrastructure that grows with the biking public.  It is not enough to encourage people to ride.  They must have safe space in which to do so.  Failure in that regard will snuff out the biking movement in the U.S. while it is still in its infancy.  An inability to grow and expand a well-developed biking infrastructure will likely lead to dysfunction.

Chicago Seeks To Clarify E-Bike Rules

A rider on an e-bike. (Abel Uribe/
Chicago Tribune)

Mayor Rahm Emanuel has introduced amendments to Chicago's municipal code clarifying where electric assist bicyclists may legally roam the City's streets.  In 2018 a statewide law went in affect creating a three class system for e-bikes but mostly left it to municipalities around Illinois to decide for themselves how to regulate use of the different bike classes.  The proposed Chicago ordinance attempts to address where the bikes falling under each class may be used.

Here are the highlights of the proposed ordinance:

• Class 1 e-bikes (pedal assist under 20 mph and bike weighing less than 125 pounds), may travel in City bicycle lanes.  Class 2 and 3 bikes may not.

• The rider of a class 1 e-bike "is permitted to pass on the right side of a slower-moving or standing vehicle or bicycle, but must exercise due care when doing so."  Riders of class 2 and 3 e-bikes are not permitted to do so.

• Riders of class 2 and 3 e-bikes may overtake and pass upon the right of another vehicle but only under the same conditions as motor vehicle drivers as set forth in 9-36-020.

• Class 2 and 3 e-bikes may not be ridden on any sidewalk.  Class 1 e-bikes may be ridden on sidewalks by persons under the age of 12.  Persons 12 and over may only ride class 1 e-bikes on sidewalks marked as bike paths, to access a bike share station or to access a roadway.

• Except where otherwise stated, people riding e-bikes, particularly class 1 e-bikes, may use them anywhere, and in the same manner, as traditional bicycles.

The clarifications proposed in the new ordinance are welcome.  Many people in Chicago's bicycle community assumed that class 1 e-bikes were allowed to travel in bike lanes, but confirmation in the form of an ordinance is appreciated. 

Video Shows Driver Fleeing From Hit and Run Bicycle Crash

Hit and run crashes are especially frustrating all around.  The horror of being hit by a motor vehicle is compounded by the insult of a driver speeding away while you are left laying in the street as if your life does not matter.  As an attorney who has represented far too many victims of hit and run crashes, it can be disheartening when the offender cannot be found.  We generally rely on the existence of good quality video or of a clear photograph of the vehicle, showing either the license plate number or identifying markings, to track the driver.  Eye witnesses can help too.

Back on February 25th, the Chicago Tribune featured one or our clients, Jonathan Rogers, in a piece by Mary Wisniewski about the increase in hit and run crashes in Chicago.  It referred to two sisters, Keyannah Wolf and Dontalisha Hodges, who saw him get hit by a car which then left the scene.  They gave chase to the driver that hit Jon while recording video.  It was thanks to these caring and responsible citizens and the video they took that we were able to trace the driver and file a lawsuit against him.  While the Tribune piece made reference to the video it did not include it.  Here it is:

The police cannot be everywhere.  Our firm is good at tracking down hit and run drivers but we need something, a license plate or distinguishing detail of the vehicle, to find the offender.  So if you see something, follow the example of the sisters Wolf and Hodges; pull out your phone and snap some photos, record video, and give it to the victim or the police.  If you're not sure what to do with it, contact us.  We will make sure it goes where it is needed.