08/20/2020
The Honorable Toni Atkins
Senate President Pro Tempore
State Capitol, Room 205
Sacramento, CA 95814
The Honorable Shannon Grove
Senate Minority Leader
State Capitol, Room 305
Sacramento, CA 95814
Re: AB 1286 (Muratsuchi): Shared Mobility Devices: Agreements: OPPOSE
Dear President Toni Atkins and Leader Shannon Grove,
In less than seven years, the shared micromobility industry has provided Californians with tens of millions of zero-emission transportation trips on bicycles, e-bikes, and e-scooters, in close partnership with California cities to help achieve shared sustainability, congestion, and equity goals. In doing so, this partnership has:
● successfully eliminated tens of millions of car trips from our city streets;
● improved transit access for tens of millions of Californians; and
● provided free, socially distant transportation to essential workers.
We write in opposition to AB 1286, which could undo all of that work.
AB 1286 threatens the existence of shared micromobility in California by denying it the same legal protections afforded to every other industry.
Specifically, section (b)(2) of AB 1286 bans any provisions in a shared micromobility user
agreement by which “the user waives, releases, or in any way limits their legal rights or remedies”. Such provisions are found in nearly every user agreement in California across
every
industry, because they clearly define the parameters of liability and methods for resolution between consumers and companies
—
including protecting companies from liability for incidents caused by no fault of their own. Existing California statute and case law already govern such waiver provisions in a manner that protects consumers.
See, e.g.,
California Civil Code § 1668;
Buchan v. United States Cycling Federation, Inc.
, 227 Cal.App.3d 134 (1991). Companies and their insurers rely on decades of California jurisprudence on this subject, which apply well-settled legal tests and principles to ensure consistent and equitable standards of liability across all industries.
AB 1286 would rewrite California law and establish a novel legal standard applicable only to the shared micromobility industry. By denying cities, riders, and shared micromobility providers the contractual freedom afforded to every other industry in California, it would expose providers and cities to liability and risk for events outside of their control
. Under AB 1286, for example, neither cities nor providers would be allowed to
require riders to waive claims resulting from a rider’s own negligence or recklessness.
1
As the bill’s sponsors admit,
no other industry is subject to such a provision
. California permits and upholds the same waivers of liability for skydiving, trampoline parks, dirt bicycling, motor vehicle rental, and countless other consumer activities. There is no legal or policy
justification why California’s bikeshares and e
-scooters alone should be singled out in California and denied the legal protections afforded to all other industries.
2
Safety studies, including from California cities as well as the OECD, show that shared micromobility is as safe as other modes of transportation, and that reducing automobile vehicle miles traveled, including by encouraging use of shared micromobility, has by far the greatest impact on improving traffic safety.
3
Other provisions of AB 1286 are also problematic. Section (b)(1) would preempt cities by requiring them to substantially raise insurance requirements beyond what most cities deem necessary, while section (c) limits city discretion in piloting innovative new transportation programs. Providers already work closely with city partners, leveraging their shared goals of expanded micromobility modes and keeping them affordable. Both of these provisions would raise the cost of shared micromobility in California, further adding to the fees and regulatory burdens imposed on bikes and scooters but not on other modes.
1
The provisions impacted by AB 1286 are currently the subject of pending litigation. Some of those provisions have already been upheld by California courts as consistent with public policy, while others have yet to be decided. The Legislature should not pass a bill that would directly impact and interfere with
pending litigation, particularly litigation brought by the bill’s sponsor.
2
Indeed, the California Supreme Court has suggested the
opposite
should be true, noting that in light of the consistent nationwide pattern
of upholding releases of liability for “gymnasiums and fitness clubs, auto and motorcycle racing events,
ski resorts and ski equipment, b
icycle races, skydiving or flying in ‘ultra light’ aircraft,” that “recent appellate decisions have concluded categorically” that such user agreements “are not void as against public policy.”
Santa Barbara v. Superior Court
, 41 Cal.4th 747, 758 (Cal. 2007).
3
As the OECD International Transport Forum
found, “A trip by car or by motorcycle in a dense urban area is much more
likely to result in the death of a road user
–
this includes pedestrians
–
than a [micromobility trip]. A modal shift from motor vehicle
s towards [micromobility] can thus make a city safer.”