The liability of the user of the electric scooter

December 14 , 2018 // Specialty

Published in Economist & Jurist

The risk generated by this new means of urban mobility (hereinafter VMP), "hybrid between pedestrians and motor vehicles", has already given its first tragic result, the unfortunate death of a woman in Esplugues de Llobregat. The present article does not try to criminalize these means but to raise awareness about the need to protect the pedestrian and financially compensate for any damage that may be suffered through his civil liability.
Before analyzing the scope of civil liability, we must remember the four factors that determine the high risk of causing damages to the rest of the users of the road.
• Its mass, which in many cases is higher than that of pedestrians (think mainly of children).
• The speed, which can reach maximum speeds of 20 km / h (Type A) and 30 km / h (Type B), the most common.
• The absence of administrative authorization or permission for its use as they are not assimilated to motor vehicles.
• The minimum age, which in all municipalities that have not regulated the matter, is simply non-existent. The combination of the four exposed factors requires not only a limitation and restriction of its use throughout the national territory, but also requires a special legal and compensatory protection for the potential victim, that is, the pedestrian.
Without prejudice to the absence of state regulations, beyond the instructions of the DGT (Instruction 16.V-124), different municipalities have tried to fill this gap through municipal ordinances that do determine a minimum age and limit their use mainly to bike lanes and spaces expressly authorized, generally conditioned by maximum speeds, in addition to other requirements depending on the type of vehicle.
Civil liability for its use is not regulated in a specific way so we will have to refer to the general requirements set out in art. 1902 of the Civil Code "He who by action or omission causes damage to another, intervening fault or negligence, is obliged to repair the damage caused." The problem lies in the fact that the absence of the subscription of a compulsory insurance for its use (which we insist insistently from TRAFICOAYUDA), can lead to the total and absolute absence of a fair economic compensation for the victim for the injuries suffered (think of the relatives of the deceased victim in October), therefore, we will start from four scenarios in which, in addition to the responsibility of the "driver", the pedestrian can exercise actions against other responsible third parties:
1. The VMP is from a rental company. In such case, the same shall answer as direct and joint civil liability. If this company also has a civil liability insurance, it may be sued against the latter depending on the particular conditions of the policy.
1. The VMP is private and of private use, in which case the owner and the "driver" will respond with their direct assets. In case of absence of own property (think of a young owner of the 19-year-old scooter without income), the victim will not be able to compensate for the damage suffered, except for the better future of the deceased.
1. The VMP is used by a minor. The parents will be responsible for the damages caused by the children that are under their custody.
1. The possibility of the existence of a home insurance that covers the civil liability derived from the family unit, according to the coverages agreed upon in the particular conditions of the same. This option must be analyzed on a case-by-case basis, but we must keep it in mind as it may be the most effective way to be compensated for the damage.
The quantification of the corporal damages were assimilated, by analogy, to those derived from the Civil Liability and Insurance Law in the Circulation of Motor Vehicles and to the new corporal damage valuation system in force since 1/1/16.
For all the above, from TRAFICOAYUDA we consider it necessary to adopt three measures immediately
1. a) a state regulation of its use that includes the minimum age,
2. b) the need for an administrative authorization for the case of its use on bike paths and
3. c) the need to implement a mandatory civil liability insurance covering the damages and losses that they generate.
Notwithstanding the above, from TRAFICOAYUDA we want to raise awareness in society so as not to minimize the risk that this type of vehicle generates for the pedestrian and the need for prudent use of it.

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La responsabilidad civil del usuario del patinete eléctrico
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