A month before Segway scooters are available to the public, the regulatory battle lines are heating up. San Francisco has banned them from city sidewalks, as part of the opt-out provision that California gave cities when it legalized Segway use.
Full story here, and some editorial comments inside.
The problem with passing Segway legislation right now is that we honestly have close to no idea what their overall benefits and dangers are. It's true that Segway LLC has done hundreds of thousands of hours of testing and they claim that Segways are perfectly safe. But it's also true that Segway LLC has every incentive to be optimistic about Segway safety and that large-scale tests are largely impossible without actually introducing tons of Segways onto city streets. Similarly, we don't yet know whether, in practice, Segways are going to be fun toys or will justify their purchase price tenfold in economic terms. We just don't know. Given our lack of knowledge, we turn to the legal system to make smarter decisions than rich kids out joyriding would make.
And this is where I think the current Segway debate falls down. People are running around acting as though prohibiting the durn things is the only response we have. But criminal regulation is only one of many techniques we as a society have for dealing with conduct. (It's doubtful that San Francisco really wants Segways banned forever; they just want some other city to try the experiment first). Code-as-law is the most well-known other approach: Segways could be effectively kept off of city sidewalks by eliminating curb cuts: a Segway can't climb a four inch vertical step. But there are even more approaches out there. And to talk about Segways without talking about tort law is just ridiculous.
It's impossible to think about Segway safety without thinking about auto safety, and especially the auto insurance system of paying for accidents and encouraging safe driving. More than anything else, it's that system that has told us exactly how safe cars are (answer: not very). Crash tests don't tell you as much as accident statistics. At the same time, the system is also a decision about to avoid accidents. Differential insurance rates are supposed to encourage people to buy safer cars and demonstrate safe driving habits in general. Fault-based liability is supposed to encourage people to drive responsibily by sticking them with the bill if they misbehave.
Both of these techniques work, to some extent, but they're in tension with each other; if you're insured, you won't drive as defensively as you would if the costs of an accident came directly out of your pocket. A balance must be struck between different ways of increasing safety and reducing costs; banning Segways outright means that we, as a society, forego any advantages they might confer. In particular, in hilly San Francisco, the elderly pedestrians most at risk from Segways on crowded sidewalks are probably the same people who would most benefit from being able to use one to climb the city's steep hills. Tort law is a great area to play with because it focuses so clearly on the biggest (potential) problem with the scooters: the danger they pose to others.
My personal proposal is that Segways be allowed, but that Segway owners be held stricly liable for any damage that occurs when they knock into someone or something, no matter how reckless the other party's conduct, and that Segway drivers be required to carry insurance (at least at first). In theoretical terms, you use strict liability where one side is in a better position to avoid the accident in the first place, where that side knows better what the costs and benefits of the activity (here, going out on the sidewalk on a Segway) are, and where that side is better able to pay for the damage that might occur.
Segway owners -- especially the governments, utilities, and large companies who will be the first to deploy them in large numbers -- pass all three of these tests beautifully. If Segways really are so perfectly controllable, then Segway drivers will find it easier to avoid collisions than will other pedestrians. An insurance market will very rapidly develop, and that market will calculate exactly how expensive Segways are in terms of the damage they cause; owners can weigh the cost of insurance against the benefits of deploying them. And, of course, since Segways are expensive and will be used principally by large companies and rich people with disposable income, there is comparatively little injustice in making them pay for the damage their Segway use causes.
Strict liability is nice for several reasons. It's cheaper to administer than regular fault-based liability -- you just need to show that there was a collision and send along the bill (so there are fewer opportunities for lawyers to slow down the process). It very accurately assesses overal costs -- those making the decision whether or not to drive a Segway will have exactly the right incentives to use them when they should be used and not use them when they shouldn't. Of course, if, as I suspect, Segways turn out not to be so dangerous after all, then strict liability will make little difference, but if they do turn out to be ridiculously dangerous, strict liability will very rapidly price them out of existence.
A key final point: Segways are not like bikes. Bikes have top speeds that make them reasonable for road use. While it is true that 12mph was once considered fast (early 20th century car accident cases involving speeds of 15mph are filled with editorializing from judges about reckless driving), on today's streets, anything that maxxes out that quickly is a deathtrap. One may hope -- as I do -- for the day when Segways, bikes, and their allies wholly displace cars from city streets, but that day is not yet upon us. Until then, I don't like using the law to shut off bold new ideas in transportation before they've been given a proper trial.