OFESAUTO’s contributing lawyer María Remedios (Maren) García-Valle Pérez from the firm GARCIA-VALLE ABOGADOS SLP analyses the legal framework applicable to electric scooters and summarises the liability for accidents involving this novel mode of transport in Spain.
The article will be of great interest to legislators in other countries when regulating electric scooter use and accidents.
The English version of the article appearing below is exclusive to OFESAUTO’s website.
- 1. CIVIL LIABILITY
- 1.1. LIABILITY OF THE USER AND/OR OWNER OF AN ELECTRIC SCOOTER
- 1.2. LIABILITY OF AN ELECTRIC SCOOTER RENTAL COMPANY
- 1.3. LIABILITY OF THE DRIVER OR OWNER OF A MOTOR VEHICLE
- 2. LIABILITY OF THE SELLER OF A FAULTY ELECTRIC SCOOTER (CONSUMER AND USER RIGHTS)
- 3. CRIMINAL LIABILITY
- 1. CASES INVOLVING MINORS
- 2. CASES INVOLVING INSURED ELECTRIC SCOOTERS
- 3. CASES INVOLVING RENTED ELECTRIC SCOOTERS
- 4. CASES INVOLVING CRIMINAL LIABILITY
- 5. CASES INVOLVING ADMINISTRATIVE LIABILITY
In recent years, the use of electric scooters has skyrocketed in our cities. They are a cheap, environmentally friendly and quick form of transport. Thus, both motor vehicle drivers and non-drivers — either because they are too young or cannot afford to drive a car — are opting for electric scooters as a means of transport.
Of the questions we could pose about electric scooters, as the new mode of urban transport, we are going to focus on the following:
- How are electric scooters regulated under Spanish law?
- In an accident involving an electric scooter, who is liable? What type of liability is applicable, and does it matter if the scooter has been modified?
- Are electric scooter users ready to assume the consequences of scooter use?
- How do the courts deal with accidents involving this novel mode of transport?
In Spain, electric scooter users expose themselves to, in addition to the physical risk inherent in using the vehicle, having to assume liability that they are probably not ready to face by not being insured or at least not adequately insured to cover the damage that the use of an electric scooter can cause.
Medical care, public or private, will cover the costs of injuries suffered by an electric scooter user in an accident. However, the situation is less clear if an electric scooter user hits and/or injuries a pedestrian, damages someone else’s property, or causes or is involved in a car accident.
II. REGULATORY FRAMEWORK
With the appearance of the electric scooter in city traffic, the law has responded as it usually does in such cases. First, a new, popular phenomenon arises. Second, owing to the risks and problems arising from this phenomenon, users and legal practitioners see the need for regulation. And so also on this occasion, this new reality is gradually being regulated, at the European, national and local level.
Because you do not need any authorization to use an electric scooter, scooter users, especially minors, may be unaware of the law applicable to the damage caused by scooters.
EU and Spanish national and local authorities have done little to publicize the regulations applicable to the use of electric scooters and the fact that these rules can vary from place to place. For example, a trip across Madrid on an electric scooter will take you through areas with differing regulations because local bylaws dictate what electric scooters are allowed and not allowed to do on the streets of each municipality.
The technical characteristics of a scooter also determine which legal framework is applicable.
1. EUROPEAN REGULATIONS
EU law — which forms part of Spanish law — covers the market surveillance of the manufacture, approval and marketing of vehicles used in EU territory, with each member state integrating these regulations into national law. The EU establishes the regulatory framework for vehicles, with member states taking this framework into account to regulate the characteristics of vehicles and the conditions of their use in their territories.
The marketing of personal mobility vehicles (“PMVs“), which includes electric scooters, has been strictly regulated in the EU. This has been necessary to avoid a surge in accidents caused by manufacturing faults of PMVs given that their manufacture has seen exponential growth owing to the boom in their use, especially of electric scooters, as an alternative form of urban transport that is environmentally friendly and cheap.
The European legal framework for electric scooters, as PMVs, is found in Regulation (EU) 168/2013 of the European Parliament and of the Council of 15 January 2013 on the approval and market surveillance of two or three-wheel vehicles and quadricycles (“EU Regulation 168/2013“).1
This regulation, directly applicable in Spain, addresses the need to regulate the new types and classes of vehicles, like light electric vehicles, that were starting to be manufactured in 2010. EU Regulation 168/2013 opens the door for PMVs to be legally considered vehicles but without being motor vehicles.2 Once this new type of vehicle makes its way onto the road, EU Regulation 168/2013 creates a space for them, not because it regulates them directly, but because it covers them in the margins it sets given that in specifying its scope of application (i.e. scooters with a seat, powered cycles, two-wheel mopeds, etc.), it excludes them in article 2.2:
“i) self-balancing machines;”
“j) vehicles not equipped with at least one seating position”
Thus, the first requirement for being considered a PMV is to meet one of these exclusion criteria because if one is met, the vehicle cannot be classified as a light vehicle subject to EU Regulation 168/2013.
PMVs will have to be regulated by specific regulations for them, without prejudice to the laws that each member state passes for them. To date, compulsory insurance for this type of vehicle has not been regulated by the EU. Thus, member states are free to regulate on this vital aspect.
Electric scooters, in being PMVs, cannot have the characteristics of light vehicles to avoid being legally equivalent to light vehicles. If they were classed as a light vehicle governed by EU Regulation 168/2013, an administrative permit or license would be required for road use (along with their registration) and driving them.
To be marketed, PMVs must meet the requirements of the following directives on CE marking:
a) Directive 2006/42/EC of the European Parliament and of the Council of 17 May 2006.3 This directive governs machinery and amends Directive 95/16/EC (recast). It has been incorporated into Spanish law via Royal Decree 1644/2008 of 10 October.4 It establishes the rules for the marketing and putting into service of machines.
b) Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011.5 This directive governs restrictions on using certain dangerous substances in electronic and electronic devices. It was incorporated into Spanish law by Royal Decree 219/2013 of 22 March.6
c) Directive 2014/30/EU of the European Parliament and of the Council of 26 February 2014.7 This directive governs the harmonization of the laws of member states relating to electromagnetic compatibility (recast), incorporated into Spanish law via Royal Decree 186/2016 of 6 May.8 It regulates the electromagnetic compatibility of electric and electronic equipment.
2. COMPARATIVE LAW
What have other European countries done in the face of the new reality of electric scooters?
EU member states have taken different approaches to regulating electric scooters, some treat them as motor vehicles, others as vehicles, while others equate them to bicycles.9 This means that some countries, the minority, require insurance to use electric scooters, as occurs in, for instance, France, Germany, the Netherlands and Belgium.
Most EU countries agree on having a maximum speed limit for electric scooters, usually between 20 and 25 km/h. By way of example, the following are the most notable aspects of some of these European regulations:
- In Germany, electric scooters have their own law.10 They are considered light personal electrical vehicles that can only carry one person. Insurance is compulsory given that they are considered motor vehicles. But neither a license nor a helmet is required to ride one. The minimum driving age is 14. They can be used on all urban roadways, including 50 km/h limit roads and cycleways. Their use is prohibited on footpaths, even with the motor off. Use of a PMV that does not have its speed limited to 20 km/h is prohibited. PMVs can be parked in spaces for bicycles.
- Under Belgian law, electric scooters are considered mobility devices.11 They are treated the same as bicycles for use on the roads, with insurance required for scooters that can reach a speed of 18 km/h. No license is needed to drive them. The minimum driving age is 18, and the top speed permitted is 25 km/h. Wearing a helmet is not required. They can be parked in areas provided for bicycles.
- In Denmark, electric scooters are equated to bicycles by the law.12 The road-use rules for bicycles are applicable to them. Insurance is not compulsory, and a license is not required to drive one. They cannot be used on footpaths and must be limited to 20 km/h. The minimum driving age is 15, and underage drivers must be accompanied by another, separate electric scooter.
- In Finland, electric scooters are considered light electric vehicles in accordance with Finnish regulations.13 They are treated the same as bicycles for use on the roads, and neither insurance nor a license is required to use one. The top speed permitted is 25 km/h. Electric scooters with a top speed of less than 15 km/h are not subject to the same regulations as they are considered pedestrian assistance devices.
- In France, electric scooters are considered motor vehicles by the applicable law.14 Insurance is compulsory, but neither a driving license nor a helmet is required for riding them. It is prohibited to ride an electric scooter that does not have its speed limited to 25 km/h, but this limit may be reduced locally, as occurs in Paris, where the speed limit for hire scooters is 20 km/h. Scooter riders must be at least 12. Electric scooters are to be ridden on cycleways. Where there is no cycleway, they may be used on the roads. There are special parking spaces for them, and they can also be parked in bike spaces. Wearing a helmet is not required.
- In Holland, there are mandatory regulations for electric scooters.15 The use of electric scooters has been restricted to certain models. Insurance is compulsory, as is having a blue registration plate. The speed limit is 25 km/h, and you must be 16 to use one. Wearing a helmet is not compulsory. They can be used on all public roads, but in Amsterdam they are prohibited from cycleways.
- In Italy, until 2019,16 there were no specific national regulations, with a law for this purpose being passed halfway through 2019. Electric scooters are treated as bicycles. Thus, insurance is not compulsory, and nor is having a driving license, and a child under eight can be a passenger on one. The speed limit is 25 km/h, with use permitted on footpaths up to a speed limit of 6 km/h. The minimum riding age is 14. They can be used on all urban roadways, including 50 km/h roads and cycleways.
- Portugal has no specific regulation governing the use of electric scooters. They are considered equivalent to bicycles, and all the regulations for bicycles are applicable to them.17 Therefore, insurance is not compulsory, nor is having a driving license.
- In Sweden, electric scooters complying with certain technical requirements are considered equivalent to bicycles, it being prohibited to use them on footpaths at speeds greater than walking pace.18 It is illegal to ride scooters not limited to 20 km/h, and helmets are required for under 15 year old.
From these few examples of such widely varying regulations, we can see that EU member states need to agree on, as soon as possible, the harmonization of electric scooter regulations. Given the boom in electric scooter use and the consequences of this, a “Micro-Mobility Directive” is increasingly necessary and, as with automobile civil liability, insurance should be made compulsory for all electric scooter users.
Outside of the EU, the UK and US regulations are worth mentioning:
In the UK, there is no specific legislation for electric scooters, and the regulations for motor vehicles are applicable.19 As electric scooters are considered motor vehicles, to use one in the UK, you must be over 16 and have insurance and a driving license.
In the US, there is no uniform legislation as each state has its own electric scooter laws.20 However, some regulations are the same in many states, such as electric scooter use being permitted on all roadways and footpaths, a helmet not being required, the minimum riding age being 16, and the speed limit being between 20 mph (32.19 km/h) and 30 mph (48.28 km/h). Whether insurance or a scooter driving license is required differs from state to state.
When an electric scooter accident occurs in the US, a negligence analysis is the focus, specifically to analyze where electric scooters can be used in accordance with the state laws (footpaths, streets, cycleways, etc.), where a law exists that prohibits use in a particular place. If a law (e.g. a traffic law) is violated in the driving of an electric scooter and injury is caused to someone, the doctrine of “negligence per se” is applied, i.e. it is presumed that the electric scooter user was at fault based on the duty of care unless the user can demonstrate that an exception is applicable for them not to be considered negligent. The exceptions include the applicable law being unclear, the electric scooter user acting with reasonable care to try to comply with the law and the violation in question resulting in less damage than if the user had obeyed the law.
3. SPANISH NATIONAL AND LOCAL REGULATIONS
Compliance with the above-mentioned EU regulations by PMVs safeguarded the observance of certain requirements for their marketing, but regulation was needed on the road use of these new vehicles.
In Spain, the first response to this lacuna in the law and this new type of vehicle on the road came from the Directorate General of Traffic (“DGT“). While the amendment to Spanish vehicle regulations was being drafted to include these new vehicles, the DGT regulated this area via transitory instructions in an attempt to set criteria for the adapting of the traffic regulations.21
The first of these instructions was Instruction 16/V-124 Matter: Personal mobility vehicles (PMV) of the DGT of 3 November 2016 (“Instruction 16/V-124”).22
This instruction explained that to establish urban traffic rules, a distinction was made between pedestrians, who were given the use of footpaths, and motor vehicles, which were given the use of the road, and that the emerging technology had given rise to new vehicles, as urban mobility solutions, creating the need for pedestrians and motor vehicles to share the footpaths and roads with these new devices.
Instruction 16/V-124 defined PMVs as vehicles (albeit not motor vehicles) capable of assisting individuals in personal trips and that, owing to their construction, might exceed the characteristics of cycles and be equipped with an electric motor, the limits of which were established in EU Regulation 168/2013. The design, manufacture and marketing of these PMVs must meet the technical requirements established in the current legislation on industrial safety and general product safety.
Instruction 16/V-124 stated that local councils were in charge of establishing the traffic limits of PMVs on urban roadways, in accordance with the criteria they considered relevant, such as speed limits. Thus, the new regulations began to be implemented by local councils in accordance with article 7 Royal Legislative Decree 6/2015 of 30 October passed to approve the consolidated text of the Law on Traffic, the Circulation of Motor Vehicles and Road Safety (“LTSV” as abbreviated in Spanish).23
Instruction 16/V-124 clarified the following two characteristics on PMV use:
i) As a PMV was a vehicle, it could not treated the same as pedestrians and must not be used on footpaths or other areas reserved for pedestrians, barring exceptions allowed by the local authority; PMVs were considered the same as cycles and bicycles, meaning that traffic, road use and road safety legislation was applicable.
ii) As PMVs could not be classified as motor vehicles, they were vehicles to be used on roadways that did not require insurance, a driving license or a permit for road use.
Owing to the delay in the amendment of the vehicle regulations to cover PMVs and the rise in the use of these vehicles, in 2019, the DGT published Instruction 2019/S-149 TV-108 Matter: Technical clarifications and criteria for reporting offenses against light vehicles powered by electric motors of the DGT of 3 December 2019 (“Instruction 2019/S-149 TV-108″).24
Instruction 2019/S-149 TV-108 provided a new definition of PMV that would be included in the 2020 regulations, specifying that a PMV was a one-person vehicle with one or more wheels powered exclusively by electric motors that can provide the vehicle with a maximum speed by design of between 6 and 25 km/h and that can only be equipped with a seat if the vehicle has a self-balancing system.
Therefore, it establishes that electric scooters, as PMVs, can travel between 6 and 25 km/h because:
i) if these vehicles cannot go over 6 km/h, they are considered toys
ii) if these vehicles can go over 25 km/h, they are considered mopeds given that they would be light vehicles powered by electric motors and, therefore, subject to Regulation EU 168/2013, thus requiring a driving license, helmet and insurance
In accordance with the provisions of Instruction 2019/S-149 TV-108, if an electric scooter can go over 25 km/h and cannot be classified under Regulation EU 168/2013 because it has been modified to alter its speed or other technical characteristic, it cannot be used on the roads as it lacks the administrative authorization for doing so.
Instruction 2019/S-149 TV-108 does not consider the following to be PMVs:
a) vehicles without a self-balancing system and with a seat
b) vehicles designed for competition
c) vehicles for persons with reduced mobility
d) vehicles with an operating voltage greater than 100 VDC or 240VAC
e) vehicles included within the scope of Regulation EU 168/2013
In accordance with Instruction 2019/S-149 TV-108, PMVs do not require insurance or a driving licence, but they are subject to the General Traffic Regulations, approved by Royal Decree 1428/2003 of 21 November (“General Traffic Regulations“).25 Therefore, riding a PMV entails, among other requirements, the obligation to take drug and alcohol tests (the PMV is immobilized if the test is positive) and to use protective elements (such as helmets), the list of which could be extended by local regulations.
Instruction 2019/S-149 TV-108 considers the person riding the PMV for the purposes of the traffic regulations, and especially for prohibited actions, a driver. Because PMVs are subject to the General Traffic Regulations, PMV drivers cannot, among other applicable prohibitions:
i) travel on footpaths or in pedestrian areas
ii) drive under the effects of alcohol or drugs
iii) transport passengers
iv) drive at night without lights or reflective clothing/elements
v) use a mobile or any other device or a headset or headphones connected to an audio receiver or player, etc. while driving
Local bylaws govern the use of other protective elements, in accordance with Instruction 2019/S-149 TV-108, and may govern, among other aspects, whether insurance is compulsory.26
Regarding violations committed by underage PMV drivers, Instruction 2019/S-149 TV-108, in considering a PMV a vehicle, establishes that article 82.b) LTSV is applicable, with parents, guardians, foster parents and legal or de facto carers being jointly and severally liable.27
At the end of 2020, the long-awaited amendment to the Spanish traffic regulations, Real Decree 970/2020 of 10 November (“RD 970/2020“), was published.28 This law amends the General Traffic Regulations and the General Vehicle Regulations, approved by Royal Decree 2822/1998 of 23 December on urban traffic measures (“General Vehicle Regulations“).29
RD 970/2020 does not provide for compulsory insurance to use PMVs on the road and, furthermore, states that PMVs do not need require administrative authorization to be driven.
However, RD 970/2020 did include three key points found in Instruction 16/V-124 and Instruction 2019/S-149 TV-108 of the DGT:
i) Recognition of PMVs as vehicles.31 Thus, using them on footpaths and in pedestrian areas is prohibited.32
ii) The urban nature of the PMVs. PMVs are prohibited from use on through roads, intercity roads, motorways, highways and urban tunnels. Point 4 was added to article 38 General Traffic Regulations for this purpose.33
iii) The complete definition of PMVs. This is provided in section A “Definitions” of Appendix II of the General Vehicle Regulations, expressly excluding PMVs from the definition of motor vehicles.34 Also, among other concepts, the definition of the “personal mobility vehicle” is incorporated. 35 The same definition seen in Instruction 2019/S-149 TV-108. This definition is to be taken into account for the possible communication of the existence of PMVs by local authorities to the Vehicle Register of the DGT. 36
RD 970/2020, by amending the General Vehicle Regulations to incorporate paragraphs j) and k) into article 3.37 and to add point 2 of article 22 bis on personal mobility vehicles, has regulated for the first time the obligation for PMVs to obtain a certificate for road use to demonstrate that every PMV complies with the technical requirements set out in national and international regulations.38 This certificate must be issued by a competent third-party designated by the Central Traffic Headquarters. The application for the certificate must be made by the manufacturers, importers or their representatives in Spain.
The above-mentioned technical requirements are to be set out in the specifications manual for PMVs.39 This manual is to be drafted by the Central Traffic Headquarters and must be updated when the relevant national or international regulations are amended or when a new means of mobility appears.40 It appears possible that the DGT and whomever the DGT deems appropriate (probably the Ministry for Industry, certification companies, vehicle manufacturers, etc.) will participate in the drafting of this manual.
In addition to the technical requirements for the PMVs to be used on the road, this manual will include the classification of these requirements, the testing processes for certification and the mechanisms to be used for vehicle identification.
Following publication of the specifications manual for PMVs in the BOE and on the webpage of the DGT, a two-year countdown will begin for all PMVs to be certified.41 This is because this manual will serve as the data sheet, meaning that only vehicles meeting the requirements established for the PMV category will obtain it. Thus, PMVs will obtain certification for use on the roads where a company authorized by the corresponding government authority certifies that the vehicle model meets the established technical requirements. Other vehicles subject to Regulation EU 168/2013 must obtain approval, i.e. be a model approved for use on the roads by an official entity (e.g. the Ministry for Industry), and on being approved, they must be registered.
It is assumed that PMVs sold once the specifications manual has been published could come with the road-use certificate that the manufacturers, importers or their representatives could arrange, but RD 970/2020 does not regulate this matter.42
But what about PMVs that have already been sold or will be sold in the transition period? How will they be regulated? As currently the only companies capable of certifying the specifications of a vehicle through technical testing are the ITVs (vehicle technical inspection offices), given that they are responsible for the technical inspection of vehicles, it is possible that, in the future, owners of PMVs purchased prior to publication of the technical specifications manual may have to obtain the road-use certificate from the ITVs.
As we have seen, vital matters such as requiring insurance for using electric scooters on the road, the minimum driving age and the obligation to wear a helmet have yet to be regulated nationally. While these legal gaps are being filled, regulation is occurring at the local level.43 For instance, Barcelona, Castellón, Valencia, Palencia, Benidorm, Pozuelo de Alarcón and Mahón are among the few cities that require insurance for using electric scooters on the road via their bylaws.44
In addition, in accordance with article 745 LTSV (Powers of municipalities), local councils are responsible for, among other aspects, regulating, ordering, managing, monitoring and controlling traffic on their urban roadways and reporting offenses committed on these roads and penalizing these offenses when another authority is not explicitly given this power.
What do the local bylaws on electric scooters, understood as PMVs, say?
Until RD 970/2020 came into force, local bylaws typically treated electric scooters the same as bicycles, requiring that they be used on roadways, cycleways, roads or specifically designated areas and setting the speed limit for electric scooters at between 5 and 10 km/h in many of these areas.
Following the coming into force of RD 970/2020, local bylaws have been adapted to the new regulation. By way of example, let us look at how this has taken form in Madrid and Barcelona.
In Madrid, in May 2021, the preliminary draft of the amendment to the bylaw on sustainable mobility in Madrid of 5 October 201846 (“BSM”) was passed. The preliminary report for this amendment mentions the need for addressing the changes caused by the continual evolution of mobility trends and technology and for adapting local regulations to changes in regional and national regulations on traffic, vehicles and drivers. The BSM, if passed, will include, in Book 2 (Modes of transport and vehicles), a Title 3 (Vehicles) with a Chapter 3 specifically on PMVs, including electric scooters as vehicle type A or B, depending on their size. This new regulation will not require insurance for using an electric scooter on the roads, but it will maintain previous provisions of the BSM, i.e. the prohibition of use on footpaths and in pedestrian areas, the permission to travel on cycleways and 30 km/h limit roads at a top speed of 25 km/h, and the minimum driving age of 15. It will introduce the obligation for under 18 year olds to wear helmets and the obligation to park electric scooters in designated forks or anchor points so as to not block the use of footpaths by pedestrians.
In April 2021, Barcelona passed regulations for PMVs via an amendment to the bylaw on the circulation of pedestrians and vehicles of 27 November 1999, previously amended in 2017 (“BCPV“). These changes to the BCPV set out where PMVs, including electric scooters, can be used; the minimum age for driving these vehicles; the requirement for civil liability insurance; and the requirement to wear a helmet and have reflective elements, lights and a bell. It also includes a classification of PMVs according to which, among other types, Type A includes smaller PMVs, such as small electric scooters, unicycles and boards, and Type B includes larger PMVs, such as large electric scooters and Segways. The identification and registration of PMVs is only necessary when they are used for a commercial activity.
Electric scooters cannot be used on footpaths or in pedestrian areas in Barcelona. They can travel in parks and on cycleways at a top speed of 10 km/h and on roadways (including the cycleway part of a road) at speeds of between 20 and 25 km/h. The minimum age for using an electric scooter in Barcelona is 16. With regards to helmets, the Barcelona regulations are more restrictive than Madrid’s as under 16 year olds must use a helmet to use Type B vehicles. Also, in Barcelona, Type A vehicle users must wear a helmet if the vehicles form part of a public-use service or a commercial, touristic or non-profit leisure activity. Type A and B PMVs cannot be parked by being tied to trees, traffic lights, benches or other urban furniture or in front of loading zones or in spaces reserved for other users or services or on the footpath if they block pedestrians. Except Type A vehicles, all vehicles must have reflective elements, lights and a bell.
This analysis of the current regulations in Spain for this new mode of transport tells us that, as PMVs, electric scooters are not considered motor vehicles. This conclusion directly affects the type of civil liability applicable for damage or injury caused and/or suffered in an accident involving an electric scooter. If an accident involves an electric scooter and a pedestrian, a different type of civil liability will be applicable to if a motor vehicle is involved. When motor vehicles are involved, the provisions on liability in Royal Legislative Decree 8/2004 of 29 October approving the consolidated text of the law on civil liability and insurance in the circulation of motor vehicles also come into play (“TRLRCSCVM” as abbreviated in Spanish).47
III. WHO IS LIABLE AND TYPES OF LIABILITY
To analyze the type of liability applicable in an accident involving an electric scooter, we must distinguish the following cases:
- For accidents in which the user and/or owner of the electric scooter is responsible, the fault-based civil liability governed by the Spanish Civil Code (“CC“) is applicable.48 But for accidents involving a motor vehicle in which the driver of this vehicle is responsible, civil liability is governed in accordance with the TRLRCSCVM. Thus, in this case, strict liability is applicable for personal injuries, this liability extending to the insurer. For accidents in which both a motor vehicle driver and the user or owner of an electric scooter are partly responsible for the accident, both types of liability have to be applied based on shared liability.
- For accidents involving or that are caused by an underage electric scooter user and/or owner, the civil liability of the parents comes into play.
- For accidents owing to an electric scooter having a manufacturing fault, the seller of the electric scooter is liable to the consumer user.
- If the electric scooter driver, whether under 14 or of legal driving age, commits a criminal offense, criminal liability is applicable, depending on the circumstances of the accident: whether the driver was under the effects of drugs or alcohol, or whether the driver was speeding because the electric scooter was modified, in which case this modified scooter may be considered a motor vehicle subject to legalization.
1. CIVIL LIABILITY
1.1. LIABILITY OF THE USER AND/OR OWNER OF AN ELECTRIC SCOOTER
In Spain there are no specific legal provisions on the civil liability arising from the use of PMVs in general, nor regarding electric scooters in particular. Thus, when an electric scooter is involved in or causes an accident, e.g. the user of an electric scooter hits a pedestrian, fault-based non-contractual or Aquilian liability49 is applicable in accordance with article 1902 or 1903 CC, depending on who the user of the electric scooter is because:
a) article 1902 CC is applicable in the case of liability for own acts. This is because the electric scooter driver is responsible for their own acts or omissions, being liable out of their own pocket for any damage caused50
b) article 1903 CC is applicable in cases of vicarious liability for the acts of another, with others being liable for the acts or omissions of the electric scooter user: parents for children under their care, guardians for minors in their charge and who live with them, carers for a person they support and who lives with them, owners and directors of companies for their employees, heads of non-tertiary schools for minors under the control or supervision of teachers51
With respect to the described vicarious liability, note the provision in the last paragraph of article 1903 CC: “The liability referred to in this article ceases when the persons mentioned demonstrate that they exercised all the diligence of a reasonable person to prevent the damage.”
The victim, in our example a pedestrian hit by an electric scooter, may bring this Aquilian action against the parents of an underage electric scooter rider, unless the parents can demonstrate they were diligent in preventing the damage.
For a non-contractual civil liability action to prosper, either under article 1902 or 1903 CC, the following elements must be established:
i) an unlawful act or omission attributable to the electric scooter user
ii) the wrongfulness of the unlawful conduct owing to violation of an applicable regulation
iii) the fault or negligence of the electric scooter user
iv) a resulting damage or injury that may be compensated by the wrongdoer
v) the causal relationship between the unlawful conduct and the damage or injury, such that the electric scooter user is liable for compensating the damage or injury caused
In addition to claiming against the user and/or owner of the electric scooter for the loss and damage suffered in accordance with articles 1902 or 1903 CC, depending which is applicable, if the electric scooter was insured, the insurer may also be claimed against in accordance with articles 18, 19, 20, 7352 and 76 of Law 50/1980 of 8 October on insurance contracts53 (“LCS” as abbreviated in Spanish), with article 76 providing for the direct action of the injured party to claim against the insurer to enforce performance of the obligation to compensate for damage.54
1.2. LIABILITY OF AN ELECTRIC SCOOTER RENTAL COMPANY
When an accident occurs involving a rented electric scooter, a claim may be made against the rental company and/or its insurer if the state of the rented PMV may have contributed to cause the accident.
In this case, contractual liability is applicable given that a rental service was contracted, with the rental company and/or the insurer being liable for the personal injury or property damage if it is found responsible for the accident. For this contractual liability, article 1101 CC, among other provisions, is applicable55. The main obligation of an electric scooter rental company is to ensure the good condition of the rented device. Thus, it must not rent electric scooters that are damaged in any way or not fit for road use.
With regard to the possible liability of an electric scooter rental company, the following decisions of the Spanish Supreme Court must be taken into account:
a) Supreme Court Decision of 14 March 2011 finding that the case law on risk does not preclude the need to demonstrate the existence of a fraudulent act or omission to which the harmful result can be causally attributed, without prejudice to, for the determination of fault, the obligation to take into account that a greater risk requires greater care by the person creating or increasing it.
b) Supreme Court Decision of 24 September 2009 ruling that article 1903 CC “is not applicable in this case because none of the requirements exist that this article establishes for the business person to be liable for vicarious acts, i.e. that an employee causes the damage or injury and that this damage is caused ‘in the services for which’ the employee is employed or when performing their duties. This has no place in a lease relationship because: a) the lessee is not an employee of the lessor […]“.
When an electric scooter is rented out, there will be an insurance policy that can be claimed against as insurance is compulsory when an electric scooter is rented as part of a commercial activity. This insurance may cover both damage to third parties and damage suffered by the driver of the electric scooter contracting the rental service.
1.3. LIABILITY OF THE DRIVER OR OWNER OF A MOTOR VEHICLE
When a motor vehicle is involved in a traffic accident with an electric scooter, for instance, when an electric scooter is hit by a motor vehicle or there is a collision between both vehicles, the civil liability for automobiles established in the TRLRCSCVM is applicable.
In accordance with article 1.1.1 TRLRCSCVM (Civil liability): “The motor vehicle driver is liable, in virtue of the risk created by driving a motor vehicle, for the personal injury or property damage caused owing to the driving of the vehicle.”
In our example, what happens to the electric scooter user? Is this type of liability applicable to them?
To answer this question, we must take into account that article 1.6 TRLRCSCVM states that, “the meanings for concepts such as ‘motor vehicle’ and ‘use of a vehicle’ are taken from the regulations for the purposes of this law“, with the LTSV defining in Appendix I.6 what a vehicle is56 and in Appendix I.12 what a motor vehicle is.57
Excluded from this scope are, among other devices, electric motor vehicles considered toys, these being defined by Royal Decree 1205/12011 of 26 August on toy safety58. Toys being “[…] products designed or meant for, exclusively or otherwise, play by children under 14 […]“.
Under these regulations and the provisions in the regulatory framework analyzed for PMVs (Instruction 6/V-14, Instruction 2019/S-149 and RD 970/2020), electric scooters are only “vehicles“. Thus, paragraph 1 of article 1.1 TRLRCSCVM is not applicable, meaning that the non-contractual civil liability in article 1902 or 1903 CC explained above is applicable for electric scooter drivers.
Regarding the liability of the motor vehicle driver, the second and third paragraphs of article 1.1 TRLRCSCVM provide for a twofold strict and fault-based criterion, with the motor vehicle driver having strict liability59 for personal injury, only being released from it if it is demonstrated that the injury was caused exclusively by the fault of the victim or force majeure unrelated to the driving or operation of the vehicle, and fault-based liability60 for property damage. The provisions mentioned above on the liability of insurers in the LCS are applicable to both these types of liability.
Thus, with regard to the persons liable in a traffic accident involving a motor vehicle, the general rule is that the driver of the motor vehicle is strictly liable for personal injury according to the risk created, but the owner of the motor vehicle who is not the driver may also be liable in the cases regulated by article 1.3 TRLRCSCVM.61
In accordance with this regulation, the civil liability of the non-driving owner of a motor vehicle is fault based under the relationships set out in articles 1903 CC and 120.5 of Organic Law 10/1995 of 23 November on the Spanish Criminal Code (“CP” as abbreviated in Spanish)62. This liability ceases if the owner can demonstrate that they exercised all due diligence as a reasonable person to prevent the damage or injury. However, the second paragraph of 1.3 TRLRCSCVM includes an exception to this fault-based liability that makes the non-driving owner strictly liable if they do not have the compulsory insurance required for the motor vehicle63.
Notably, article 120.5 CP also provides for the civil liability of the owner for damage or injury caused by authorised persons64.
Although article 1903 CC does not govern this case, the legal literature and case law broadly interpret this liability of the vehicle owner for damage or injury caused by an authorized driver65.
If the electric scooter user contributes to the cause of an accident with a motor vehicle, it is necessary to determine if the victim is exclusively at fault, governed by article 1.1 paragraph 2 TRLRCSCVM, or if there is shared liability, governed by article 1.2 TRLRCSCVM66. In the first case, the motor vehicle driver is released from their strict civil liability for personal injury on demonstrating that the injury was caused only by the victim’s exclusive fault, meaning that the burden of proof is reversed. In the second case, both the motor vehicle driver and the victim capable of being civilly liable must both be at fault, with the compensation to be reduced in accordance with the above-mentioned article.
The case law for applying the exclusive fault of the victim requires that this be the only fault existing and that the motor vehicle driver’s conduct was irreproachable. It is not sufficient for the driver’s conduct to be diligent for them to be released from this liability as their conduct must be the most appropriate and effective in each case to stop an imminent danger caused by the fault of another from resulting in injury.
The Supreme Court Decision of 12 December 2008 (reiterated by Supreme Court Decision 201/2014 of 14 April and Supreme Court Decision 490/2018 of 15 July) established the case law on shared liability. This decision found that the reduction of liability and the distribution of compensation for injury is not applicable when, with the injury being caused by two conducts (that of the motor vehicle driver and the victim external to the road use of these vehicles), the conduct of the vehicle driver — given its extent and nature — constitutes a determinate cause of the collision, even when there is a chance contribution of the victim in relation to the driving of these motor vehicles.
Article 1.1 TRLRCSCVM does not include third-party acts as a cause for releasing a motor vehicle driver from their liability. For a third-party act that contributes to the cause of the injury to be considered part of force majeure as per this article, the act must be outside the scope of the traffic and unpredictable and inevitable.
2. LIABILITY OF THE SELLER OF A FAULTY ELECTRIC SCOOTER (CONSUMER AND USER RIGHTS)
If an electric scooter breaks down owing to a manufacturing fault and because of this an accident occurs that injures the owner and user of the electric scooter or a third party, who is liable for the injury must be determined67.
Instruction 16/V-124 regulated that the legal and technical classification of PMVs must take into account that their design, manufacture and marketing must meet the technical requirements established in the current legislation on the industrial and general safety of products in accordance with Law 21/1992 of 16 July on Industry (“LI“)68. Thus, articles 2, 3, 3.3 and 8 and in particular articles 9 to 17 LI on industrial safety are applicable69. Articles 30 to 38 LI regulate the violations and penalties applicable to manufacturers, sellers and importers (article 33.c) LI). Article 30.3 LI states that when, in the opinion of the competent authority, a violation may constitute an offense, it must be handed over to the Public Prosecution Service, with original authority not proceeding further with the penalty procedure until after the court rules.
Electric scooter sellers are liable, in accordance with article 11470 of Royal Legislative Decree 1/2007 of 16 November approving the consolidated text of the Spanish General Law on the Defense of Consumers and Users (“LGDCU” as abbreviated in Spanish)71 and other complementary laws.
In this case, the consumer (the owner or user of the electric scooter) has a right to:
a) the protection of their health and safety by the public authorities in the case of a common, ordinary and generalized use and be compensated for injury or loss suffered as a result of a faulty product in accordance with articles 8, 9, 117, 128 and 129 LGDCU72
b) receive the information required regarding the instructions and indications for appropriate use and the warnings and foreseeable risks that should be at least in Spanish in accordance with article 18 LGDCU73
c) opt for the repair or replacement of the electric scooter in accordance with article 119 LGDCU or the termination of the contract in accordance with article 121 LGDCU74
3. CRIMINAL LIABILITY
3.1 LIABILITY OF THE ELECTRIC SCOOTER USER
In an electric scooter accident, the physical well-being or life of the victim may be harmed, these being legally protected rights in the offenses of negligence defined in the CP. Thus, electric scooter users may be perpetrators of negligent homicide and injury offenses.
As, in accordance with the definition for PMVs in the General Vehicle Regulations, electric scooters are considered vehicles, articles 10.1 and 10.275 and 13.1 and 13.376 LTSV are applicable. These articles establish that scooter users must avoid causing harm, nuisance or danger; be attentive at all times; and exercise diligence and care. Furthermore, in using electric scooters on roadways, users have a duty of care regarding the risks inherent to road use and, therefore, as in the case of cyclist, articles 10 and 52 LTSV are applicable to them. These articles specify rules on speed, right of way, entering into traffic, turning, making U-turns and reversing, overtaking, stopping and parking, the use of lights, etc. along with the corresponding rules in the General Traffic Regulations. Violating these rules puts at risk the electric scooter user and other road users, such as pedestrians and motor vehicle drivers77.
To analyze the criminal liability of electric scooter users in an accident, first we need to take into account that we are not dealing with a road safety offense given that PMVs are not motor vehicles and that the offenses in Chapter 4 of Title 17 of the CP require the involvement of a motor vehicle. Thus, these offense definitions do not apply.
This leaves us with the criminalization of accidents caused by electric scooter users under the negligence offenses of articles 142 and 142 bis CP for death and articles 152 and 152 bis CP for injury. 78 In both cases, we must exclude the application of the part of these articles related to motor vehicles.
Article 142 CP79 governs negligence leading to death80 .The provisions of this article are further detailed by article 142 bis CP81.
Article 152 CP .82 provides for different types of sentences for injuries caused by gross or less serious negligence based on the risk created and the result, with more detail provided in the provisions of 152 bis CP83.
Given these provisions, if an accident involving an electric scooter results in negligent homicide or injury, we must analyze whether it is a case of gross or less serious negligence of the electric scooter user. To do this, the circumstances of the accident must be taken into account, for instance, whether the scooter driver was under the effects of drugs or alcohol, was going over the speed limit because they were riding a modified scooter, etc. In the case of ordinary negligence, the above-examined civil liability is applicable.
For offenses involving gross or less serious negligence resulting in death or injury, the assessment of injury and loss in the traffic accident tables in the TRLRCSCVM is applied analogously84.
In criminal proceedings for an offense under article 142 or 152 CP owing to an accident caused by an electric scooter user, when there are violations of the LI by an economic operator (manufacturer, importer or distributor) in the marketing of vehicles under this law, the issue of liability must be decided upon with the competent regional authority for the investigation of the administrative penalty procedure against the operator. If LGDCU violations appear to have been committed, the Deputy Prosecutor must be informed so that the matter can be handed over to the civil affairs prosecutor for the purposes of article 11.5 .85 of Law 1/2000 of 7 January on Civil Procedure (“LEC” as abbreviated in Spanish)86.
3.2. LIABILITY OF THE USER OF A MODIFIED ELECTRIC SCOOTER
In analyzing the criminal liability of electric scooter users, we excluded the application of road safety offenses under articles 379 CP and following because of the premise that a PMV is not a motor vehicle.
However, road safety offenses are applicable if an electric scooter has been modified or manipulated and, as a result of these changes, has the characteristics for it to be considered a motor vehicle, in which case it becomes a vehicle that may be legal under Regulation EU 168/201387.
A modified scooter is neither an approved nor registered vehicle. Thus, there will be no documentation on its real technical specifications for the purposes of classifying it as per the above-mentioned regulations. Therefore, an expert’s report on these characteristics is required. This means that the vehicle will have to be seized in accordance with article 764.488 of the Royal Decree of 14 September 1882 approving the Law on Criminal Proceedings (“LECRIM” as abbreviated in Spanish)89.
Article 1.2 General Traffic Regulations90 governs the immobilization of this type of vehicle used on the road without administrative authorization. This is because unapproved or unregistered vehicles are prohibited from use on public roadways in accordance with article 1 General Traffic Regulations91.
In the road safety offenses in articles 379 and following CP, in relation to the fault-liability element, it is necessary that the perpetrator knows that they are not driving an electric scooter considered a PMV but a motor vehicle or moped. In this circumstance, the assessment of the mistake provided for in article 14.1 CP92 is applicable. Thus, if it is demonstrated that the electric scooter user was unaware that they were riding a modified PMV, criminal liability may be excluded owing to a surmountable and insurmountable mistake. Indeed, negligent commission is not provided for in the offense definitions in article 379 and following CP.
Spanish courts, in analyzing accidents involving modified electric scooters, must take into account Regulation EU 168/2013, Instruction 16/V-124, Instruction 2019/S-149 TV-108, RD 970/2020, the LTSV, the applicable local bylaws and Opinion 2/2021 of 21 June 2021 of the Prosecutor of the Road Safety Coordinating Division (“Opinion 2/2021“)93. This set of rules helps clarify how to treat the circumstances of each case in relation to the provisions of the CP, an exhaustive police investigation into the circumstances being required.
3.3. LIABILITY OF AN UNDERAGE USER OF AN ELECTRIC SCOOTER
And what happens if the electric scooter driver is underage?
Opinion 2/2021 of the Prosecutor of the Road Safety Coordinating Division states that when there is a serious or extreme risk for the life or physical well-being of children or minors riding electric scooters, the Deputy Prosecutor must be informed so that the matter can be handed over to the Prosecutor for Juvenile Matters.
Article 61.3 of Organic Law 5/2000 of 12 January governing the criminal liability of minors94 is clear about this:
“When the offense is committed by a minor under 18, the parents, guardians, foster parents or legal or de facto caregivers, in this order, are jointly and severally liable with the minor for damage, injury and loss caused. When these carers did not maliciously or with gross negligence encourage the conduct of the minor, their liability may be reduced by the court depending on the case.”
As we saw in the analysis of Instruction 2019/S-149 TV-108, as these violations are committed by underage drivers and because electric scooters are PMVs, article 82.b) LTSV is applicable, i.e. the minor’s parents, guardians, foster parents or legal or de facto caregivers are jointly and severally liable with the minor.
The following decisions of the Spanish Supreme Court reflect these provisions:
a) Criminal Division Supreme Court Decision 240/94 of 12 February cited in the Provincial Court of Seville Decision of 18 February 2000: “[…] the parents of a minor who commits a negligent act of this type must be aware that whoever has or possesses legal custody of this convicted offender owing to the offender being a minor is liable for any compensation imposed on the offender, and not secondarily but also primarily.”
b) Supreme Court Decision 1225/2009 of 14 January: “The parents were civilly liable for the acts committed by a child who could not be found criminally liable owing to age.”
IV. STANCE OF THE INSURERS
All activity involving risk, for example, use of an electric scooter on the roads, should bring with it the requirement to take out an insurance policy to guarantee that potential victims of negligent acts can be compensated by the insurance company for damage suffered, whether this be property damage, injury or death.
The existence of insurance that covers the liability arising from the use of an electric scooter depends on two factors:
a) The applicable legislation. Spanish national law does not yet require having insurance for using an electric scooter on the road. So any cases of insurance being required in Spain must be established by local bylaws applicable where an accident happens95.
b) Who owns the electric scooter. Electric scooter rental companies must include insurance as part of their rental service, but this insurance may entail limits that reduce the coverage so much that insufficient protection is provided. For privately owned electric scooters, the taking out of insurance for use of it to cover civil liability and/or damage will depend on the owner’s awareness of their liability as an electric scooter user on urban roadways.
In 2021, some insurance companies signed agreements with multinational electric scooter distributors to offer their mutual clients the option to take out civil liability coverage for use of the electric scooters purchased. The objective of this measure is not only to sell a product but also to provide customers with solutions to needs arising from the purchase of an electric scooter. Thus, these partnerships seek to provide safety and protection to persons opting for electric scooters as a sustainable alternative to traditional public and private transport.
However, are these new insurance products offered to electric scooter buyers really providing them with this safety and protection?
To answer this question, we must keep in mind that the insurance culture in Spain is very different to in other EU member states such as Germany or in English-speaking countries such as the UK or the US, countries in which taking out all manner of insurance with the appropriate limits is considered normal.
Currently, you can buy voluntary insurance policies that for a premium of €30 a month cover €150,000 per claim, including legal defense, with a deductible for damage to the electric scooter and theft of €150. Also, some home insurance policies that cover the use of bicycles have extended their coverage to include electric scooters.
However, these policies may limit the sum covered or even exclude traffic accidents. The limits to the sums covered are around €30,000, with some insurers offering coverage of up to €500,000.
These sums fall short if the loss event in which an electric scooter is involved causes a long-term injury or death. In these cases, in assessing the injury caused, the insurer or the court may analogously apply the sums in the traffic accident tables in the TRLRCSCVM, and this could amount to a large sum96.
Thus, electric scooter users should be aware of and understand the risk they are exposed to in using an electric scooter because a simple loss event (e.g. hitting a pedestrian and breaking their arm when the scooter driver is at fault) could cost them dearly. We need to create a risk-aware culture when it comes to using electric scooters on the road given that the CC requires a person causing injury to a third party to compensate them.
V. CASE LAW
Although electric scooters only recently appeared on city streets, a body of case law has started to take shape. In this section, we analyze some of the more novel and interesting decisions, structuring our analysis according to the legal matter in question. This will show us how the legislation is being applied to the new panorama brought on by this most peculiar new player on our roads.
1. CASES INVOLVING MINORS
In accordance with the vicarious non-contractual civil liability in article 1903 CC, parents are liable for the acts of their children, as reiterated by the following case law:
a) Provincial Court of Burgos Decision 8/2004 of 16 January (Appeal 204/2003) affirmed the trial court’s decision in a civil liability case, finding that a minor was directly civilly liable and his parents jointly and severally liable based on article 61 Law 5/2000 in having hit a victim when riding an electric scooter on the footpath. The minor (14) was riding an electric scooter on the footpath too close to the buildings, and this caused him to hit the victim who was coming out of a bar, the victim suffering injuries. The Public Prosecution Service requested that the court rule that the minor was directly civilly liable and his parents jointly and severally liable. Because it was demonstrated that the minor was driving very close to the buildings and that, for this reason, he could not dodge the victim, his acts constituted a clear case of non-contractual liability under article 1902 CC, it being demonstrated that the culpable or negligent driving of the electric scooter caused injury to the victim. Thus, there was an obligation to compensate the victim for the injury suffered97.
b) Provincial Court of Málaga Decision 191/2020 of 30 April (Appeal 77/2019) affirmed the trial court’s decision because it was demonstrated that the electric scooter users, both minors, by their dangerous and wrongful act, caused injury to the claimant in hitting her, with the exculpatory version of a parent of the scooter passenger not being accepted owing to a lack of evidence. Two minors on an electric scooter, one driving and the other as a passenger, as a result of a dangerous and wrongful act when going down a hill, accidentally hit the victim. The parents were ruled to be civilly liable for the wrongful acts of their children in accordance with article 1903 CC for not complying with their duty of care to supervise their children. The conviction was justified as no evidence was provided demonstrating that an act of the claimant caused the accident. The fact that the scooter passenger was not driving did not change anything. Merely being a passenger on a scooter designed to be used by one person constituted in itself a negligent act that played a tangible part in the cause of the accident because it made the vehicle go faster given that it was going downhill98.
2. CASES INVOLVING INSURED ELECTRIC SCOOTERS
When an electric scooter hits a pedestrian, in addition to claiming compensation for loss and injury from the scooter driver in accordance with article 1902 or 1903 CC, if the electric scooter driver is insured, the victim may claim against the insurer in accordance with, among others, article 73 and 76 LCS:
a) Provincial Court of Madrid Decision 425/2018 of 26 November (Appeal 515/2018) found that the insurer had to compensate a pedestrian who had been hit by a scooter99. At a truck racing event, the claimant, when walking in a pedestrian area, was hit by an electric scooter or Segway as a result of a negligent act of the driver. The electric scooter was owned by a company covered by a civil liability insurance policy. Although a lack of standing to be sued was alleged owing to the claim being made against the insurer, the defendant entity was considered to have standing to be sued as the insurer of the electric scooter owned by the insured and because a voluntary insurance contract existed covering civil liability. Thus, as it was demonstrated that the accident had occurred owing to unsatisfactory handling or operation of the electric scooter, this act gave rise to civil liability, both for the offender and the owner and secondarily for the insurer under article 73 LCS100.
b) In Panel 1 of Provincial Court of Álava Decision 392/2017 of 18 September (Appeal 364/2017), following an analysis of the regulations applicable to PMVs and the examining of the evidence, the appeal was partially allowed, with the original decision being partially reversed, and the insurance company was ordered to pay part of the compensation to the claimant hit by a motor vehicle when riding her electric skateboard on the road. The trial court’s decision dismissed the claim in considering that the victim was exclusively at fault, but on appeal it was determined there was shared liability owing to negligence of both the motor vehicle driver and the electric scooter user. If in a traffic accident a motor vehicle hits an electric scooter, the liability of both vehicles must be analyzed to determine if either of them was exclusively at fault or there was shared liability. The claimant was riding an electric skateboard when, on entering a pedestrian crossing, she was hit by the insured vehicle. The vehicle had stopped at the zebra crossing and started up again when the collision occurred because the driver had not exercised due care by not taking into account the presence of the claimant on the zebra crossing. The claimant continued her course without slowing on entering the zebra crossing. Both parties were in the wrong, meaning there was shared liability, for which the insurer was liable for half the compensation payable to the claimant for the injury arising from the loss event101.
3. CASES INVOLVING RENTED ELECTRIC SCOOTERS
Below are two decisions involving the liability of companies that rent out an electric scooter involved in an accident:
a) Panel 3 of Provincial Court of Palma de Mallorca Decision 372/2009 of 8 October (Appeal 369/2009) allowed the appeal lodged by the driver of a motor vehicle hit by a rented electric scooter. The owner of the motor vehicle claimed for damage caused to their vehicle by a rented electric scooter. The owner of the electric scooter, whose commercial activity entailed the rental of electric scooters, was found to be liable in accordance with articles 1902 and following CC because the accident, damage and ownership of the electric vehicle causing the damage were all demonstrated. 102
b) Provincial Court of Palma de Mallorca Decision 29/2021 of 27 January (Appeal 403/2020) quashed the appeal against the trial court’s decision dismissing a claim for compensation for injury and loss suffered owing to an accident of being hit by an electric scooter. The claim had been made against the company that owned and had rented out the electric scooter. The insurance company had not been claimed against because the policy did not cover civil liability arising from the activity of the business, and it was not possible to claim against the driver of the scooter because they could not be identified. Based on the evidence examined in the proceedings, the electric scooter driver was found to be exclusively at fault in the accident, having lost control of the vehicle and traveling on the wrong side of the road and hitting the claimant who was walking on the road next to the footpath. Furthermore, the company’s action in the accident was not established, nor was any condition of the scooter that could have contributed to the accident. Thus, this decision found that the electric scooter driver had direct liability in finding no response at superior liability in the acts of the rental company, nor was any specified by the claimant103.
4. CASES INVOLVING CRIMINAL LIABILITY
Electric scooter users cannot commit road safety offenses given that these offenses require the involvement of a motor vehicle and, as we have seen, PMVs are not motor vehicles, meaning that these types of criminal offenses are not applicable.
However, if these vehicles can go over 25 km/h, they are considered mopeds, which are motor vehicles, and are subject to Regulation EU 168/2013, and therefore must be registered for use on the road. But if an electric scooter is used on the road at more than 25 km/h and is not classified under Regulation EU 168/2013 because it has been manipulated to alter its speed, it can also not be used on the roads as it lacks the administrative authorization for doing so.
The following decisions illustrate how the courts have treated possible offenses committed by PMV users:
a) Provincial Court of Girona Decision 59/2016 of 29 January (Appeal 1028/2015), in reviewing the sentence given to an electric scooter driver for a road safety offense because the accused had been driving under the influence of alcohol, absolved the appellant in finding that the electric scooter was not a moped and, therefore, one of the requirements of the offense definition in question was not met104. The court explained in Conclusions of Law 1 that even though the electric scooter met all the requirements to be considered a moped in accordance with the definition of the Law on Traffic, it did not consider it one given that it did not have the technical approvals required for mopeds105.
b) Badajoz Criminal Court 2 Decision 195/2019 of 12 December (Appeal 12/2019) acquitted the accused of a road safety offense because even though they had been driving a vehicle subject to Regulation EU 168/2013 without a license, the driver did not know this, and the mistake specified in article 14.1 CP was applicable106.
c) Panel 2 of Provincial Court of Madrid Decision 887/2019 of 12 December (Appeal 1859/2019) dismissed the appeal and affirmed the trial court’s decision convicting the accused as the perpetrator of an offense of driving a moped without a license because all the elements of the offense definition were present107.
d) Panel 2 of Provincial Court of Cáceres Decision 44/2020 of 7 February (Appeal 94/2020), after affirming the trial court’s decision in the acquittal for a road traffic offense because it had been demonstrated that the accused was not aware that their electric scooter was a moped (there being therefore a mistake on an element of an offense definition under article 14.1 CP), analyses the matter that not all electric scooters are PMVs108. The court explains that Instruction 2019/S-149 TV-108 expressly states that if an electric scooter can exceed 25 km/h, it is considered a moped and, therefore, is subject to Regulation EU 168/2013, needing in this case the required administrative license to be driven109.
e) Provincial Court of Barcelona Decision 146/2020 of 27 February (Appeal 166/2019) allowed the appeal and acquitted the accused of the road traffic offense of driving without a license in considering that the accused’s driving of the mini-motorbike did not constitute the offense of driving without a license in accordance with article 384.3 CP110.
f) Provincial Court of Murcia Decision 81/2020 of 24 March (Appeal 5/2020) found in favor of the appellant, reversing the trial court’s decision and acquitting the user of a “Citycocco” scooter of the offense of driving without a license (384 CP) owing to there being no expert evidence demonstrating that a moped or other vehicle subject to Regulation EU 168/2013 was used111.
g) Provincial Court of Murcia Decision 29/2021 of 2 February (Appeal 4/2021) allowed the appeal and reversed the trial court’s decision that convicted an electric scooter driver of a road safety offense under article 384.2 CP, thus acquitting the defendant. The court found, after analyzing the regulations applicable to PMVs and the evidence examined (which did not include any expert evidence to determine if the vehicle was a PMV), that the electric scooter driven by the accused could be considered a moped subject to Regulation EU 168/2013, but there was an unsurmountable mistake on an element of the offense definition in accordance with article 14.1 CP by the accused regarding what they were driving112.
5. CASES INVOLVING ADMINISTRATIVE LIABILITY
Article 7 LTSV states that local councils must, among other things, monitor urban roads under their control, report offenses committed on these roads and apply penalties where this does not come under the powers of another authority.
Regarding the penalties imposed by councils, various decisions issued help understand how the courts view the legal status of electric scooters in different jurisdictions:
a) Administrative Court 3 of Alicante Decision 348/2019 of 13 November (Appeal 601/2019) deals with an administrative offense under article 121.4 General Traffic Regulations, involving the use of an electric scooter on roadways not for scooter use, for which the offender was given a fine of €60,000. This decision found that a local bylaw in the process of being passed was not applicable. In analyzing the limited extent of the DGT instructions and listing the regulations applicable to electric scooters, it quashed the administrative action owing to it being impossible for electric scooters to be treated under the provision alleged to impose a penalty given that electric scooters are different from skateboards, scooters, skates or similar devices because the electric scooter is considered a vehicle that can be used on the road113.
b) Administrative Court 1 of Valladolid Decision 160/2019 of 4 December (Appeal 142/2019) deals with the offense under article 18.2 paragraph 1 General Traffic Regulations of driving while using a headset or headphones connected to an audio receiver or player. After analyzing the regulations applicable to PMVs, this decision dismissed the appeal stating that the decision appealed was in accordance with the law, with the administrative fine imposed for using an electric scooter while wearing headphones being lawful because it is considered that a person handling a mechanism for changing direction or being in control of a vehicle is a driver, with the electric scooter being considered a vehicle in accordance with the DGT’s instructions114.
In recent years, the use of electric scooters has shot up owing to how convenient these devices are for getting around town115. At the same time, the appearance of the electric scooter in urban traffic has seen a rise in situations of risk that have led to an uptick in accidents, many involving fatalities116.
Given this panorama, the lack of a uniform and thorough response nationally by the Spanish government is creating uncertainty in the determining of liability for the damage and injury caused by these vehicles. A major part of the problem with electric scooters is the lack of general regulations for them, with key matters being left to local regulation, for instance, whether insurance is required for the use of electric scooters by individuals.
The current situation may leave unprotected both the users of electric scooters and the victims of accidents involving them given that if an electric scooter user is found liable for an accident and does not have insurance to cover the personal injury or property damage, this user will have to pay the compensation out of their own pocket. This lack of protection is likely not known by electric scooter users in Spain.
As a result, even though PMVs are not considered motor vehicles, regulatory reform is urgently called for to require electric scooter users to take out insurance to cover any damage or injury caused by their scooters. For these cases, the DGT is starting to publicize the advantages of compulsory insurance. Thus, it could proceed as it did in its pioneer provisions on PMVs in Instructions 16/V-124 and 2019/S-149 TV-108117.
This measure could avoid that pedestrians and other vehicle drivers have to suffer the consequences of being involved in an accident with an electric scooter user who turns out to be insolvent and without voluntary insurance to cover the risk of their scooter use. Injured parties are currently unprotected by a contradiction in the system that allows electric scooters and their drivers to share the roads with motor vehicles and their drivers without requiring from them the same cover when they can cause and be involved in traffic accidents as they form part of the same traffic.
A pillar of Spanish automobile civil liability is the requirement for all motor vehicle owners to have insurance given that without this insurance the owner would be strictly liable with the driver for any personal injury or property damage caused by the driver, except when it can be demonstrated that the vehicle was stolen in accordance with article 1.3 TRLRCSCVM118.
Given this pillar, it is difficult to understand why, if electric scooters have been allowed to dine at the table that is using urban roadways, the same requirements are not asked of them as of other vehicles on the road. This is a striking contradiction given that we have seen in recent years that electric scooters — given their nature and how they are used — generate the same or an even greater risk than motor vehicles. Therefore, as occurred with other activities that create risk for third parties, appropriate regulations should be put in place as soon as possible.
While we are waiting for this regulatory change, it is vital that we raise the awareness of electric scooter users on the need to have insurance to cover the risk that using an electric scooter entails. If the courts apply strict civil liability in accidents involving uninsured electric scooters, based on the risk that they create as traffic vehicles, they will be applying the same approach as for accidents involving uninsured motor vehicles.
Thus, for accidents with uninsured electric scooters, strict liability would be applicable, meaning that the electric scooter user would be liable for the damage, at least personal injury, unless it can be proven that the fault or negligence of the motor vehicle or pedestrian contributed to the cause of the damage or injury119. This has already been indicated by the Spanish Supreme Court for the risk liability created from driving a vehicle, albeit a motor vehicle, but the same risk may be caused by the user of the PMV electric scooter, even if it is not a motor vehicle120.
- OJEU no. 60 of 2 March 2013.
- L. C. Morell Aldana, “Vehículos de movilidad personal: un comentario de urgencia a su última regulación transitoria” Diario La Ley Nº 9547 (2020), points out that EU Regulation 168/2013 should not be confused with European Parliament Project 2017/01017 (“Light motorized vehicles for the transportation of persons and goods and related facilities and not subject to type-approval for on-road use – Personal light electric vehicles (PLEV) – Requirements and test methods”) in which the PMVs are classified in four distinct categories.
- OJEU no. 157 of 9 June 2006.
- Official State Gazette of Spain (“BOE” as abbreviated in Spanish) no. 246 of 11 October 2008.
- OJEU no. 174 of 1 June 2011.
- BOE no. 71 of 23 March 2013.
- OJEU no. 96 of 29 March 2014.
- BOE no. 113 of 10 May 2016.
- M. M. Sokolowski, “Laws and Policies on Electric Scooters in the European Union: A Ride to the Micromobility Directive”, in European Energy and Environmental Law Review (2020).
- Regulation of 6 June 2019 of the Federal Ministry of Transport on the use of personal light electric vehicles on the road.
- Traffic Code of 1975.
- Danish Road Safety Council Personal Communication of 28 November 2019 and 23 January 2020.
- Finnish Vehicle Act of 2002 and Ministry of Transport and Communications of Finland, Personal Communication of 31 of July 2020.
- Decree of 23 October 2019 and Ministry for the Ecological and Inclusive Transition, Personal Communication of 7 December 2019.
- Ministry of Infrastructure and Water Management, Personal Communication or 28 October 2019 and 28 January 2020.
- Decree of 2019 of the Italian Ministry of Transport.
- National Road Safety Authority 2019 Personal Communication 28 Nov 2019.
- Road Traffic Regulation 1998:1276 and Act 2001:559 on Road Traffic.
- Road Traffic Act 1998 and Highway Act 1835.
- Z.M. Heinselman, E.B. Milder and L.S. Weiner, “Scooter Wars: Local Approaches to Regulating Shared Mobility Devices” in League of California Cities 2019 Spring Conference (2019).
- J. M. Hernández-Carrillo Fuentes, “¿Circular en un patinete eléctrico sin permiso o licencia de conducción es constitutivo de delito?”Sobre Responsabilidad civil y seguro Homenaje a Mariano Medina Crespo, Ed. Sepín (2020), states that DGT instructions are not legal rules that amend pre-existing law, as found by the Spanish Constitutional Court (Panel 2 of Constitutional Court Decision of 19 February 1986 (26/1986)) and the Supreme Court (Supreme Court Administrative Division Decisions of 30 July 1996, 10 February 2001 and 6 May 2004). The Supreme Court found that circulars and instructions can interpret the law but, obviously, cannot develop it given that only laws can do this.
- Instruction 16/V-124 on PMVs.
- BOE no. 261 of 31 October 2015.
- Instruction 2019/S-149 on technical clarifications for offense reporting.
- BOE no. 306 of 23 December 2003.
- L. C. Morell Aldana, “Vehículos de movilidad personal: un comentario de urgencia a su última regulación transitoria” Diario La Ley Nº 9547 (2020), explains that both Instruction 16/V-124 and Instruction 2019/S-149 TV-108 establish that PMVs do not require having a driving license, registration certificate or insurance that covers civil liability. However, local councils may regulate on PMVs as these local authorities, within the framework of their regulatory powers, may impose penalties on these matters.
- Article 82.b LTSV: “When an offense is committed by a minor under 18, the parents, guardians, foster carers or legal or de facto carers, in this order, are jointly and severally liable with the minor for the fine imposed owing to a violation of the obligation imposed on them entailing a duty to prevent the administrative offense the minor is charged with.”
- BOE no. 297 of 11 November 2020.
- BOE no. 22 of 26 January 1999.
- M. C. García Garnica and R. Rojo Álvarez-Manzaneda, “Régimen Jurídico y presupuestos de la responsabilidad civil automovilística”, in various authors, Responsabilidad civil y valoración de los daños causados a las personas en accidentes de circulación, Ed. Atelier (2021), highlight that PMVs are exempt from having to obtain the administrative authorization generally required for road use to verify that vehicles are in a perfect state of operation and have the characteristics, equipment, spare parts and accessories required by law, especially in accordance with article 22.bis (Personal mobility vehicles) of the General Vehicle Regulations: “1. Personal mobility vehicles are exempt from having to obtain the administrative authorization referred to in article 1.1”.
- A. Martinez Nieto, “Nuevos límites de velocidad en el medio urbano y normas de control de la movilidad en patinetes” Tráfico y seguridad vial Nº256 (2020), points out that RD 970/2020 marks an important step in defining the new personal mobility means as a vehicle because considering it in this way gives rise to two other legal consequences: first, their use in areas reserved for pedestrians is prohibited; second, the documentation requirements for these vehicles are made more stringent.
- V. Magro Servet, “Los patinetes eléctricos en la búsqueda de su ubicación legal ¿Qué son realmente?” Tráfico y seguridad vial Nº257 (2021), explains that the Explanatory Memorandum of RD 970/2020 states that in defining electric scooters as vehicles, they are prohibited from being driven on footpaths and in pedestrian areas, like any other vehicle, in accordance with article 121.5 General Traffic Regulations. In the opinion of this author, the prohibition against use on the footpath has been clarified, this having been the most controversial issue.
- Article 38.4 General Traffic Regulations: “It is prohibited to drive personal mobility vehicles on through roads, intercity roads and motorways and highways that run through towns. It is also prohibited to drive these vehicles in urban tunnels.”
- Appendix II General Vehicle Regulations “Definitions”: “Motor vehicle: a motor-powered vehicle. Mopeds, trams, vehicles for persons with reduced mobility, pedal bicycles with pedal assistance and personal mobility vehicles are excluded from this definition.”
- Appendix II General Vehicle Regulations, “Definitions”: “Personal mobility vehicle: a one-person vehicle with one or more wheels powered exclusively by electric motors that can provide the vehicle with a maximum speed by design of between 6 and 25 km/h. It can only be equipped with a seat if the vehicle has a self-balancing system. Excluded from this definition are vehicles without a self-balancing system with a seat, vehicles designed for competition, vehicles for persons with reduced mobility and vehicles with an operating voltage of over 100 VDC or 240 VAC, and vehicles included in the scope of EU Regulation 168/2013 of the European Parliament and of the Council of 15 January 2013.”
- L. C. Morell Aldana, “A vueltas con los vehículos de movilidad personal: examen del RD 970/2020, de 10 de noviembre” Diario La Ley Nº 9742 (2020), discusses that RD 970/2020 leaves the door open for the registration of PMVs in stating in the Sole Additional Provision that: “Local authorities may inform the Vehicle Register of the Central Traffic Headquarters of the personal mobility vehicles and pedal bicycles with assisted peddling registered in their municipalities in accordance with the decision of the Central Traffic Headquarters.” This author points out that while the registration of the vehicles is put forward as optional for local councils, it may become general practice as this will be the only way to monitor that the PMVs being ridden in the urban area in question are doing so with a current registration certificate and are easily identifiable.
- Article 3 General Vehicle Regulations: “j) Certificate for use on the roads. Document issued by a competent third-party designated by the Central Traffic Headquarters demonstrating that the vehicle subjected to testing complies with the applicable technical requirements in accordance with national and international technical regulations. Personal mobility vehicles must obtain this certificate, and the application must be made by the manufacturers, importers or their representatives in Spain. k) Technical specifications manual for personal mobility vehicles. Document drafted by the Central Traffic Headquarters and approved by a resolution of the head of this office establishing the technical requirements that personal mobility vehicles must comply with to be used on the road, the classification of these requirements, the testing processes for certification and the mechanisms to be used to enable easy identification. The manual will be published in the Official State Gazette and on the webpage of the DGT (www.dgt.es). The manual will be updated when regulatory criteria on vehicles — both national and EU criteria — are amended or when the appearance of a new mobility means requires it.”
- New point 2 of article 22 bis (Personal mobility vehicles) General Vehicle Regulations: “To be used on the road, personal mobility vehicles must have the road-use certificate that guarantees compliance with the technical requirements set out in the national and international regulations provided in the specifications manual and also their identification.”
- New point 3 of article 22 bis (Personal mobility vehicles) General Vehicle Regulations: “The specifications manual for personal mobility vehicles must be approved by resolution of the Director General for Traffic.”
- L. C. Morell Aldana, “A vueltas con los vehículos de movilidad personal: examen del RD 970/2020, de 10 de noviembre” Diario La Ley Nº 9742 (2020), states, with regard to the technical specifications for PMVs, that the ambiguous definition in RD 970/2020 has fanned criticism from diverse sectors of PMV users. The unilateral drafting of this manual by the Central Traffic Headquarters has been criticized because obtaining the required certificate will depend on this manual.
- L. C. Morell Aldana, “A vueltas con los vehículos de movilidad personal: examen del RD 970/2020, de 10 de noviembre” Diario La Ley Nº 9742 (2020), concludes that the PMV technical specifications manual will be drafted by a body not as independent as intended and thus may not have input from experts, emphasizing that RD 970/2020 provides a sine die deadline for the manual’s drafting.
- L. C. Morell Aldana, “A vueltas con los vehículos de movilidad personal: examen del RD 970/2020, de 10 de noviembre” Diario La Ley Nº 9742 (2020), highlights, with regard to the PMV technical specifications manual, that RD 970/2020 does not make clear if all manufacturers and importers will qualify as PMV certifying authorities, if the user or the PMV must provide the certificate or if the certificate will be required of all PMVs already on the roads in Spanish cities.
- C. Romero Adame, M. Y. Cantero Bayón and J. Sastre González, “La regulación del los Patinetes Eléctricos” Tráfico y seguridad vial Nº238 (2019), said, in 2019, that the regulating of PMVs fell to local councils, which were responsible for setting the rules for their operation and use on the road via bylaws. These authors point out that this is a double-edged sword. It has the advantage that PMV use can be adapted to the peculiarities of each city. But on the downside, each municipality can have different rules, this being counter-productive for someone using a PMV in different cities.
- Amendment to the bylaw on the circulation of pedestrians and vehicles in Barcelona of 30 April 2021.Bylaw on sustainable mobility in Castellón of 6 September 2021.Bylaw on mobility in Valencia of 17 May 2019. Amendment to the bylaw on traffic in Palencia of 5 February 2020. Amendment to bylaw 1 on PMV mobility in Benidorm of 20 August 2019. Amendment to the bylaw on mobility and traffic in Pozuelo de Alarcón of 9 January 2018. Bylaw on PMVs in Mahón of 9 March 2021.
- Article 7 LTSV: “Responsibility of local councils: a) Regulating, ordering, managing, monitoring and controlling, via its agents, traffic on their urban roadways and reporting offenses committed on these roads and penalizing these offenses when another authority is not expressly given this power. b) Regulating via traffic bylaws the use of urban roadways, making the equitable distribution of parking spaces among all users compatible with the necessary road-traffic fluidity and pedestrian use of streets and providing limited parking measures to guarantee the rotation of parking spaces, paying special attention to the needs of persons with disabilities who have reduced mobility and use vehicles, all with the objective of fostering social integration. c) The immobilizing on urban roadways of vehicles that do not have the permission required for parking in areas limited by time or that have exceeded the authorization granted until the driver has been identified […]”
- BOCM (Official Gazette of the Community of Madrid) no. 253, 23 October 2018.
- BOE no. 267 of 5 November 2004.
- BOE no. 206 of 25 July 1889.
- Non-contractual liability also known as Aquilian liability for having being introduced by the Lex Aquilia in the third century BC, referred to as damnum iniuria datum: wrongfully caused damage.
- Article 1902 CC: “The person who, as a result of an act or omission, is at fault or negligent for causing damage to another must remedy the damage caused.”
- Article 1903 CC: “The obligation imposed by the previous article is enforceable not only as a result of own acts and omissions but also those of persons for whom someone is responsible. Parents are liable for damage caused by children under their care. Guardians are liable for damage caused by minors under their authority and who live with them. Carers with full powers of representation are liable for damage caused by a person they support provided they live with them. Owners or directors of an establishment or undertaking are liable for damage caused by their employees in the service for which they are employed or in the performance of their duties. Persons or entities in charge of a non-tertiary school are liable for damage and loss caused by students who are minors while they are under the control or supervision of teachers of the school when carrying out school, extracurricular or supplementary activities.”
- Article 73 LCS: “Via civil liability insurance, the insurer must, within the limits established by law and the contract, cover the risk for the insured of the attachment of the obligation to compensate third parties for loss and damage caused by an act set out in the contract, the consequences of which the insured is civilly liable, in accordance with the law.”
- BOE no. 250 of 17 October 1980.
- Article 76 LSC “The injured party or their heirs may take direct action against the insurer to enforce performance of the obligation to compensate, without prejudice to the rights of the insurer to bring an action for recovery against the insured where the damage or loss caused to the third party is owing to fraudulent conduct of the insured. Direct action is immune to any defenses to which the insurer may be entitled to exercise against the insured. The insurer may, however, assert a defense alleging the exclusive fault of the injured party and any personal defenses it has against this party. For the purposes of bringing the direct action, the insured must inform the injured third party or their heirs of the existence of the insurance contract and its content.”
- Article 1101 CC: “Persons who in the performance of their obligations engage in fraud, negligence or delinquency, and those who in any way breach these obligations, are liable for compensating any loss and damage caused.”
- Appendix I.6 LTSV: “Vehicle. Device apt for use on the roads or the areas referred to in article 2.”
- Appendix I.12 LTSV: “Motor vehicle. Motor-propelled vehicle. Mopeds, trams and vehicles for persons with reduced mobility are excluded from this definition.”
- BOE no. 209 of 31 August 2011.
- Article 1.1 paragraph 2 TRLRCSCVM: “In the case of personal injury, liability can only be released when it is demonstrated that the injury was owing to the exclusive fault of the injured person or force majeure unrelated to the driving or operation of the vehicle; neither vehicle faults nor the breakage or failure of a vehicle part or mechanism are considered force majeure.
- Article 1.1. paragraph 3 TRLRCSCVM: “In the case of property damage, the driver is liable to third parties when the driver is civilly liable in accordance with articles 1902 and following of the Civil Code, articles 109 and following of the Criminal Code, and in accordance with this law.”
- Article 1.3 paragraph 1 TRLRCSCVM: “The non-driving owner is liable for personal injury and property damage caused by the driver when the owner is linked to the driver by any of the cases set out in articles 1903 Civil Code and 120.5 Criminal Code. This liability ceases when the owner demonstrates that they exercised all due diligence as a reasonable person to prevent the damage or injury.”
- BOE no. 281 of 24 November 1995
- Article 1.3 paragraph 2 TRLRCSCVM: “The non-driving owner of the vehicle without compulsory insurance is civilly liable with the driver of the motor vehicle for personal injury and property damage caused by the driver except where it can be demonstrated that the vehicle had been stolen.
- Article 120.5 CP: “The following are also civilly liable, in the absence of those who are criminally liable: […] 5. Individuals or legal entities that own vehicles capable of creating risks for third parties for offenses committed via the use of these vehicles by employees, representatives or authorized persons.”
- Such as the Supreme Court Decision of 14 December 1998 (RJ 1998, 9432), analysed with respect to this broad interpretation in the case law in the chapter “Responsabilidad civil y valoración de los daños causados a las personas en accidentes de circulación” Atelier Libros Jurídicos, “Régimen Jurídico y presupuestos de la responsabilidad civil automovilística”.
- Article 1.2 TRLRCSCVM: “Without prejudice that the exclusive fault in accordance with article 1.1 may exist, when the victim capable of being civilly liable merely contributes to the occurring of the injury, all compensation is reduced, including that related to expenses incurred in the case of death, sequelae and temporary injuries, according to the shared liability up to a maximum of 75%. This contribution exists if the victim, owing to negligent or inappropriate use of seatbelts, helmets or other protective elements, violates safety regulations and worsens the injury. In the case of sequelae and temporary injuries, the exclusive or shared liability of non-driving victims of the motor vehicle under 14 or who have a physical, mental, sensorial or organic disability that denies them of capacity for civil liability, does not void or reduce the compensation, and the action for recovery against the parents, guardians and any other individual that may be liable for them is excluded. These rules do not apply if the minor or any of the persons mentioned maliciously contributed to the cause of the injury. The rules of the above two paragraphs are also applicable if the victim does not comply with their duty to mitigate the injury. The victim does not comply with this duty if they do not demonstrate a reasonably expected behavior that, without posing any risk to their health or physical well-being, would have avoided the worsening of the injury caused and especially if they unjustifiably abandon the healing process.”
- B. Vargas Cabrera, “Movilidad sostenible y responsabilidad penal de conductores de bicicletas y vehículos de movilidad personal” Tráfico y Seguridad Vial Nº237 (2019), believes that “the liability should be on the sellers and distributors so that they take care in drafting the use instructions and documentation or certifications and on the local councils to verify this documentation and promote comprehensive training courses on scooter use and the applicable regulations, requiring them from these companies when they act in public spaces”. Manufacturers, sellers and companies cannot act with the same attitude and mentality as when the product is a toy as they are subject to national legislation on industrial products and industrial safety that require taking into account road safety for the protection of fundamental legally protected rights such as life and physical well-being, even when the specific technical regulations must be developed quickly.
- BOE no. 176, 23 July 1992.
- Article 9 LI: “1. The aim of industrial safety is to prevent and limit risks and to protect against accidents and loss events capable of causing damage or injury to persons […] arising from […] the production, use or consumption, storage, or disposal of industrial products. 2. The aim of the prevention and protection activities is to limit the causes of the risks and establish controls that enable detecting or contribute to the avoidance of circumstances that could give rise to the appearance of risks and mitigate the consequences of possible accidents. 3. Risks that could cause injury or harm to persons are considered industrial safety risks…”
- Article 114 LGDCU: “The seller must deliver to the consumer and user products that are in accordance with the contract, being liable to them for any lack of conformity existing at the time the product is delivered.”
- BOE no. 287, 30 November 2007.
- Article 8 LGDCU: “1. Basic rights of consumers and users and vulnerable consumers: a) Protection against risks that could affect their health or safety, […] c) Compensation for injury and recovery of losses suffered […]” Article 9 LGDCU: “The public authorities must primarily protect the rights of consumers and users when they are directly linked to commonly, ordinarily or generally used or consumed goods or services.” Article 117 LGDCU: “Seller liability and consumer and user rights for a lack of conformity of goods or digital content or services. Third-party rights: “1. The seller is liable to the consumer or user for any lack of conformity when the goods or digital content or services are delivered, with the consumer or user being able to, via a simple statement, demand that the seller remedy the lack of conformity, reduce the price or terminate the contract. In any of these cases, the consumer or user may also demand compensation for loss and damage where applicable.” Article 128 LGDCU: “All injured parties have a right to be compensated in accordance with the provisions of this book for damage, injury or loss caused by goods or services. The actions provided for in this book do not affect other rights that the injured party may have to be compensated for damage, injury or loss, including pain and suffering, as a result of the contractual liability, based on a lack of conformity of the goods or services, any other cause of breach or defective performance of the contract, or any non-contractual liability.” Article 129 LGDCU: “1. The type of liability provided for in this book covers personal injury, including death, and property damage, provided these arise from goods or services obviously for private use or consumption and having been used mainly in this way by the injured party.”
- Article 18 LGDCU: “3. Without prejudice to the established legal or statutory exceptions, the required indications in the labelling and presentation of goods or services sold in Spain must be at least in Spanish, the official language of Spain.”
- Article 119 LGDCU: “The consumer or user may demand a proportional reduction of the price or termination of the contract in either of the following cases: b) The seller did not perform the repair or replacement of the goods or did not do so in accordance with article 118.5 and 118.6, or they did not do so within a reasonable time where the consumer or user had requested the reduction in price or the termination of the contract.” Article 121 LGDCU: “1. Except where proven otherwise, it is assumed that any lack of conformity that appears in the two years following delivery of the good or in the year following supply of the digital service or content supplied in one act or in a series of individual acts existed when the good was delivered or the digital service or content was supplied except where for the goods this assumption is incompatible with the nature or the type of the lack of conformity.”
- Article 10.1 and 10.2 LTSV: “Vehicle users, drivers and owners 1. Road users must behave in a way that does not unduly hinder the traffic or cause danger, damage or unnecessary nuisance for persons or damage to property. 2. Drivers must use their vehicle with the diligence, care and attention required to avoid all harm to themselves and others, taking care to not put themselves, other vehicle occupants and other road users in danger. Drivers must check that the registration plates of their vehicle are not covered in any way that hinders or makes difficult reading or identifying them.”
- Article 13.1 LTSV: “General driving rules 1. Drivers must at all times remain in control of their vehicle. In approaching other road users, they must take the necessary precautions for the safety of these users, especially children, the elderly and people with visual disabilities or any other disability or reduced mobility.” Article 13.3 LTSV: “General driving rules. 3. Drivers are prohibited from using any type of headset or headphones connected to audio receivers or players or other devices that reduce the permanent attention to driving, except during the carrying out of aptitude tests on an open circuit for the obtaining of a driving license in accordance with the regulations. While driving, drivers must not use mobile devices, browsers or any other means or system of communication, with the exception of hands-free means without using headsets, headphones or similar instruments. Official agents carrying out their duties are exempt from this prohibition. Regulations may be passed to establish other exceptions to the provisions in the previous paragraphs and the devices considered to reduce the attention to driving as technology advances.”
- A. C. Andrés Dominguez, “Cuestión controvertida: Los vehículos de movilidad personal ¿Instrumento típico de un delito contra la seguridad vial” Estudios Penales y Criminológicos (2020), believes that the difficulty will lie in establishing in each case the rule of care for establishing negligence because on most occasions there are no regulatory rules, or they vary in the local regulations they are found in. Thus, due diligence will often have to be determined based on the general rules of care, and this will lead to inconsistency in the assessment of similar cases.
- B. Vargas Cabrera, “Movilidad sostenible y responsabilidad penal de conductores de bicicletas y vehículos de movilidad personal” Tráfico y Seguridad Vial Nº237 (2019), states that “a lack of ability to drive a scooter is, without a doubt, also a case of grave negligence, because even to the least safety-minded user, being allowed to ride a scooter on the road with motor vehicles, cyclists and pedestrians undoubtably entails, in addition to offering advantages, risk”. From here arises the statutory duty of care, caution and attention, which even if it were not provided for in the LTSV, which it is, forms part of the essence of the negligence offenses in articles 142 and 152 CP.
- Article 142 CP: “1. A person causing the death of another through gross negligence is to be served a prison sentence, as a negligent homicide offender, of one to four years […] 2. A person causing the death of another through gross or less serious negligence is to be served a fine of 3 to 18 months […]”
- V. Magro Servet, “Responsabilidad civil y penal de los conductores de patinetes eléctricos (vehículos de movilidad personal)” Revista de Derecho de la Circulación El Derecho Nº71 (2019), on when an electric scooter rider hits a pedestrian and kills them, states that it is necessary to assess if the negligence is gross or ordinary to apply point 1 or 2 of article 142 CP, assessing the concurrent circumstances. For example, the scooter user having been drinking or riding on the footpath in violation of a local bylaw could entail gross negligence and a prison sentence.
- Article 142 bis CP: “In the cases provided for in point 1 of the previous article, the court may impose, giving grounds, a sentence that is one grade higher, in the measure seen fit, if the act was particularly serious. This must be based on the nature and importance of the risk created and the statutory duty of care violated and whether the act caused the death of two or more persons or the death of one person and injuries to other persons constituting an offense in accordance with article 152.1.2 or 152.1.3. The sentence may be two grades higher if many persons were killed.”
- Article 152 CP: “1. A person who through gross negligence causes any of the injuries provided for in the previous articles is to be served, based on the risk created and the result: 1. a prison sentence of 3 to 6 months or a fine of 6 to 18 months for the injuries in article 147.1. 2. a prison sentence of one to three years for the injuries listed in article 149. 3. a prison sentence of six months to two years for the injuries listed in article 150 […] 2. A person who through less serious negligence causes any injury listed in articles 147.1, 149 and 150 is to be served a fine of 3 to 12 months […]”
- Article 152 bis CP: “In the cases provided for in paragraph 1 of the previous article, the court may impose, giving grounds, a sentence that is one grade higher, in the measure seen fit, if the act was particularly serious. This must be based on the nature and importance of the risk created and the statutory duty of care violated and whether the act caused injuries constituting an offense in accordance with article 152.1.2 or 152.1.3 to multiple persons. The sentence may be two grades higher if many persons were injured.”
- B. Vargas Cabrera, “Movilidad sostenible y responsabilidad penal de conductores de bicicletas y vehículos de movilidad personal” Tráfico y Seguridad Vial Nº237 (2019), notes that the offense report must state the details of the municipal or personal insurance policy, including “an investigation into the offender’s property to be able to commence any coercive measures of attachment as soon as possible in the judicial proceeding, taking into account that in the case of a conviction they will be liable as per the guidelines in Ley 35/2015 on the assessment of physical injury (Insurance table)”.
- Article 11.5 LEC: “The Public Prosecution Service has standing to bring any action in defense of the interests of consumers and users.”
- BOE no. 7 of 8 January 2000.
- B. Vargas Cabrera, “Movilidad sostenible y responsabilidad penal de conductores de bicicletas y vehículos de movilidad personal” Tráfico y Seguridad Vial Nº237 (2019), points out that “these unregistered vehicles are mopeds or motorcycles under the definitions in Appendix 1.9 LTSV and Appendix 2.A General Vehicle Regulations and are subject to the provisions of the CP. Thus, where scooter drivers have been found driving over the speed limit, under the influence of alcohol or drugs or driving recklessly in accordance with articles 379 to 381 CP, the enforcement agents must include in the offense report a list of or a study on the technical characteristics of the vehicle and provide it to the Road Safety Deputy Prosecutor”.
- Article 764.4 LECRIM: “Immediate seizure of the vehicle and the withholding of its vehicle registration certificate may be ordered for the time necessary for any investigation of the vehicle or to cover monetary liabilities if there is no proof of the solvency of the person investigated or prosecuted or the civilly liable third party.”
- BOE no. 260 of 17 September 1882.
- Article 1.2 General Traffic Regulations: “A vehicle without authorization, either because none was obtained or because it was cancelled or declared to have expired, is to be immobilized until it has this authorization in accordance with these regulations.”
- Article 1 General Traffic Regulations: “To be used on the road, a vehicle must have previously been given the relevant administrative authorization to verify that the vehicle is in a perfect state of operation and that its characteristics, equipment, spare parts and accessories meet the technical prescriptions specified in these regulations. It is prohibited to use vehicles without this authorization on the roads.”
- Article 14.1 CP: “An insurmountable mistake in conduct constituting an offense precludes criminal liability. If the mistake, given the circumstances of the conduct and the personal circumstances of the perpetrator is surmountable, the offense is punishable owing to negligence.”
- Opinion 2/2021 of 21 June 2021 of the Prosecutor of the Road Safety Coordinating Division, “The criminal classification of the inappropriately named personal mobility vehicles as a legally defined instrument of the road safety risk offenses of article 379 and following of the Criminal Code, the application of the LSV to personal mobility vehicle users and cyclists, and the application of the negligent homicide and injury offenses of articles 142 and 152 to accidents caused by them. The main strategy of education and prevention in the wrongful marketing of each of these.”
- BOE no. 11 of 13 January 2000.
- A. C. Andrés Dominguez, “Cuestión controvertida: Los vehículos de movilidad personal ¿Instrumento típico de un delito contra la seguridad vial” Estudios Penales y Criminológicos (2020), points out that “the Insurance Compensation Consortium is not required to cover any damage for electric scooter drivers without insurance (article 6 and following Royal Legislative Decree 7/2004 of 29 October approving the consolidated text of the Legal Statute of the Insurance Compensation Consortium”.
- V. Magro Servet, “¿Se aplicaría el baremo de tráfico por Ley 35/2015 en caso de lesiones producidas en accidentes ocasionados por los patinetes eléctricos?” Revista de Derecho de la Circulación El Derecho Nº96 (2021), notes that for the compensatory sums in the insurance tables to be binding, the conduct leading to the personal injury must be included in the scope of application of the TRLRCSCVM, and this is not the case here, with RD 970/2020 classifying the electric scooter as a PMV and excluding it from the category of motor vehicle.
- Provincial Court of Burgos Decision 8/2004 of 16 January (Appeal 204/2003): “The acts of the minor constituted a clear case of non-contractual liability under article 1902 Civil Code, it being demonstrated that the culpable or negligent driving of the electric scooter caused injury to the victim, this requiring that the injury suffered by the victim be redressed. Given the foregoing, the ground for appeal put forward and examined here is dismissed.”
- Provincial Court of Malaga Decision 191/2020 of 30 April (Appeal 77/2019): “[…] the court finds no mistake in the court of first instance’s assessment of the evidence examined, taking into account that, contrary to the appellant’s account, not only was no evidence provided that demonstrated their version of the facts on the possible effect that the acts of the claimant had in causing the accident or the absence of fault of their son in the facts decided upon given that the appellant acknowledges that their son was under their supervision and that as they were helping a friend in a restaurant, they were not supervising their son at the time of the accident. Instead, in accordance with the statement of the victim, the victim unsuccessfully tried to dodge the scooter to not get hit by it and, in accordance with the statement by the appellant’s youngest son, the son acknowledges that he was riding on the scooter driven by his friend Sofía and that they were going downhill and accidentally hit the claimant […]”
- J. A. Badillo Arias, “El aseguramiento de los patinetes eléctricos y otros sistemas de movilidad” Revista de responsabilidad civil, circulación y seguro Nº4 (2019), highlights that the insurer was liable given that, even though electric scooters and Segways are not considered motor vehicles and, as a result, this was not a case of road use, there was voluntary civil liability insurance that covered the damage.
- Provincial Court of Madrid Decision 425/2018 of 26 November (Appeal 515/2018): “[…] it has been demonstrated that the accident occurred owing to the unsatisfactory handling or operation of the scooter, this act giving rise to civil liability, both for the offender and the owner of the scooter and secondarily for the insurer as this civil liability is included in the insurance coverage agreed by them, and this being the liability claimed in this case. This conduct is attributable to the insurer in accordance with article 73 LCS, which makes it liable to the victim for the injury and loss caused by an event provided for in the policy, as correctly ruled in the trial court’s decision. “
- Panel 1 of Provincial Court of Álava Decision 392/2017 of 18 September (Appeal 364/2017): “As there is no specific local bylaw […] we deduce that motor-powered electric scooters are approved for use on the roads, taking into account that when used in a pedestrian area, they must be driven at the speed of pedestrians, like when crossing a pedestrian crossing. […] It was when using a pedestrian crossing that she was hit by the front, centre part of the vehicle. The driver did not exercise due care and started driving without checking both sides of the road, not taking into account the presence of Ms Agüeda on her skateboard. With regards to the claimant, she continued her course without slowing as she should have in accordance with article 121.4 RGC. She should have entered the crossing at the speed of a pedestrian. However, she did the opposite, continuing her course, trying to cross in front of the vehicle. Her action must be classified as negligent. Both parties were in the wrong, meaning that liability is shared. Therefore, the company Liberty is liable for half the compensation payable to the claimant for the injury arising from the loss event.”
- Panel 3 of Provincial Court of Palma de Mallorca Decision 372/2009 of 8 October (Appeal 369/2009): “[…] 2) the co-defendant Mr Armando’s business was the rental of these scooters, obtaining profit for this activity, the requirements for the liability in articles 1902 and following of the Civil Code being met […]”
- Provincial Court of Baleares Decision 29/2021 of 27 January (Appeal 403/2020): “Based on the evidence examined in the proceedings, it is clear that the electric scooter driver was solely and exclusively liable for the accident in losing control of the vehicle and riding on the wrong side of the road in the wrong direction […] and, without being able to stop the scooter, hitting the claimant, who, accompanied by other persons, was walking on the road […] However, the action is against the driver, not the company owning the scooter. The claim does not specify what part this company played in causing the accident. There is no proof that the vehicle had any kind of operational fault that could have caused or led to the collision […]”
- M. Baelo Álvarez and A. Díaz-Bautista Cremades, “¿Es el patinete eléctrico un ciclomotor? Luces y sombras ante un limbo jurídico” Diario La Ley Nº9286 (2018). These authors consider this judgment a criminal acquittal in which the principle of bias in favor of the accused is applicable, and thus the accused is acquitted by interpreting the rule in the least restrictive manner possible.
- Provincial Court of Girona Decision 59/2016 of 29 January (Appeal 1028/2015): “As the scooter cannot be considered a vehicle for the purposes of treating it as a moped, one of the requirements of the definition of the offense for which the appellant was sentenced, i.e. driving a motor vehicle or moped, is missing, and thus they must be acquitted, without prejudice to any administrative offense they may have committed by driving on a public roadway.”
- Badajoz Criminal Court 2 Decision 195/2019 of 12 December (Appeal 12/2019): “[…] PMVs are not motor vehicles and thus do not require administrative authorization for use on the roads. As a result, and until we have definitive regulations on this matter, having a driving permit or license cannot be required of the user. […] Based on the above evidence, interpreted in accordance with the presumption of innocence, it is demonstrated that the accused was unaware that the vehicle required a license or permit to be driven […] The accused’s mistake was to not know that his vehicle in particular required a driving license. Therefore, he made a mistake with respect to an element of the statutory offense definition (article 14.1 Criminal Code).”
- Panel 2 of Provincial Court of Madrid Decision 887/2019 of 12 December (Appeal 1859/2019): “In conclusion, in the case reviewed, it is demonstrated that the vehicle driven by the accused, which in the accused’s first statement is referred to as a ‘scooter’, is not a scooter but a moped and as such must be registered, must have insurance, is required to have passed a recent periodic technical inspection and must be driven with a driving license […] Therefore, all the requirements of the offense definition are met.”
- Panel 2 of Provincial Court of Cáceres Decision 44/2020 of 7 February (Appeal 94/2020): “Not all electric scooters can be classified as Personal Mobility Vehicles (PMV) and, in fact, in the reform of the General Vehicle Regulations currently underway, a Personal Mobility Vehicle is defined as a ‘vehicle of one or more wheels for one person powered exclusively by electric motors that provide the vehicle with a maximum speed by design of between 6 and 25 km/h […] Type L1e-B vehicles such as the one the appellant was driving are, however, today subject to the rules applicable to the use of mopeds.”
- J. M. Hernández-Carrillo Fuentes, “¿Circular en un patinete eléctrico sin permiso o licencia de conducción es constitutivo de delito?”, in various authors, Sobre Responsabilidad civil y seguro Homenaje a Mariano Medina Crespo, Ed. Sepín (2020), explains that this decision rules that electric scooters that go over 25 km/h or have over 1000 W of power are mopeds and thus require a driving license for use. Decision 887/2019 from Vitoria-Gasteiz finds exactly the same.
- Provincial Court of Barcelona Decision 146/2020 of 27 February (Appeal 166/2019): “Therefore, the mere fact that the vehicle was motor powered is not sufficient for determining the criminality, for the purposes of article 384 CP, of the driving of transport devices for which prior licensing for driving is not required, for whatever reason. […] As a result, driving racing motorcycles outside of approved racetracks is an offense under article 384.3 CP. However, it is not an offense if a mini-bike or a mini-motorcycle is used. […] This does not mean that the conduct of the accused is not prohibited and does not constitute an administrative offense. This could, in fact, be the case. Therefore, following the acquittal of the accused in this proceedings, the corresponding administrative authority must be informed of the facts.”
- Provincial Court of Murcia Decision 81/2020 of 24 March (Appeal 5/2020): “An individual cannot be required to research the cryptic language and administrative classification of their vehicle, with the aim of subsequently punishing them under an alleged imprecise and obscure legal rule (if that is what the cited instruction can be considered). […] In effect, until the status of electric scooters and similar cycles is clarified legally, conducts such as in this case cannot be punished as offenses of driving without a license.”
- Provincial Court of Murcia Decision 29/2021 of 2 February (Appeal 4/2021): “[…] we must consider if it is possible to allege the mistake in light of the familiar maxim that ignorance of the law is no excuse. The Supreme Court Criminal Division clearly ruled on this matter in decision 782/2016 of 19 October, Appeal 10413/2016 […] not forgetting that it really is possible for there to be an absolute ignorance of the unlawful nature of a conduct, for which, obviously, it will be necessary to analyze the person in question, their personal circumstances and the type of offense committed in each case to be able to determine if there was a mistake affecting whether they are at fault and, therefore, whether they knew the wrongfulness of their conduct […] it is particularly difficult to infer that they know, or could really know, that in Spain, and in accordance with a specific EU regulation, that what they bought as an electric scooter could be considered a regular moped, for the use of which […] The decision states that the offense is attributed to the accused owing to conditional intent because they could have informed themselves via the Internet […] something this court disagrees with because, given the recent and difficult to interpret regulations in the case at issue, as stated in the reasoning of the decision […] it cannot be considered that the accused acted with conditional intent.”
- Administrative Court 3 of Alicante Decision 348/2019 of 13 November (Appeal 601/2019): “The fact that this new local bylaw is currently being passed makes it impossible to be used in court. […] With respect to Instruction 16/V-24 of the Directorate General of Traffic of 3 November 2016, the appellant acknowledges that it is not binding. This instruction can only be granted the limited value that article 6 LRJSP 40/2015 gives to instructions and circulars of service departments. However, and keeping in mind it is merely an instruction, it is the only regulation that it has been possible to pass in Spain on electric scooter accidents […] it is a useful rule when it states something evident, such as the vehicle nature of electric scooters. […] In this case, the rule applied by the authority to impose the penalty is article 121 RGC: ‘riding a skateboard, skates or similar devices on roadways not for such use’. The problem is the absolute impossibility of including the appellant’s vehicle (an electric scooter) under the legal definition […] It is evident that electric scooters should be considered a vehicle as they are permitted to (until they are prohibited from doing so) be used on roadways. In fact, it would be dangerous to allow them to be used on footpaths or in pedestrian areas given the speeds they can reach.”
- Administrative Court 1 of Valladolid Decision 160/2019 of 4 December (Appeal 142/2019): “[…] a person handling a mechanism for changing direction or being in control of a vehicle is considered a driver, with every ‘device apt for use on the roads or areas referred to in article 2’ and ‘[…] a personal mobility vehicle that in this case is an electric scooter’ being considered a vehicle for the purposes of the Law on Traffic and its regulations. Article 18.2 paragraph 1 General Traffic Regulations is found to be violated […] it being prohibited to drive while using a headset or headphones connected audio receivers or players.”
- According to the insurer Línea Directa, over 800,000 electric scooters were sold in Spain over the last three years.
- 1,300 accidents in the last three years with 16 fatalities. In 2018, the first fatality was documented — an elderly woman hit by an electric scooter in Espluges de LLogebrat. In 2018, there were five deaths from accidents involving electric scooters. In 2019, another five people were killed in this way. In 2020, the number was six. The last fatality of this type occurred in September 2021.
- In an interview in El País of 22 September 2021, the Director General for Traffic, Pere Navarro, was in favor of compulsory insurance for electric scooters, stating that it had been called for by the Road Safety Prosecutor and was supported by local councils.
- M. C. García Garnica and R. Rojo Álvarez-Manzaneda, “Régimen Jurídico y presupuestos de la responsabilidad civil automovilística”, in various authors, Responsabilidad civil y valoración de los daños causados a las personas en accidentes de circulación, Ed. Atelier (2021), consider that EU regulations have focused on establishing and regulating compulsory insurance for all owners of motor vehicles based in the territory of a member state.
- V. Magro Servet, “Responsabilidad civil y penal de los conductores de patinetes eléctricos (vehículos de movilidad personal)” Revista de Derecho de la Circulación El Derecho Nº71 (2019), states: “With this, if a collision is dealt with in the civil courts, strict risk liability would be applied, and the electric scooter rider would have to pay the compensation for personal injury and property damage except where they can demonstrate that the pedestrian was also at fault or negligent.” Thus, if the scooter driver does not have insurance to cover personal injury and property damage, they must compensate the injured party out of their own pocket.
- Supreme Court Decision of 18 May 2017 on the Supreme Court Decision of 16 December 2008: “[…] a criterion for attributing liability arising from personal injury caused owing to road use based on the strict liability principle for the creation of risk from driving is established. This principle excludes this attributing (article 1.1 II) only when the causal chain involves the conduct or negligence of the injured person (if the damage only affects them) or force majeure unrelated to the driving or the operation of the vehicle except where, in the first case, the driver is also negligent and the equitable reduction of liability and the sharing of the liability for the compensatory sum is applicable (article 1.1 IV LRCSVM 1995). The specific risk of road use is set out expressly in this way in the law as the basis for attributing liability, in contrast to traditional fault-based liability in which the basis for liability is the negligence of the person causing the resulting harm. This is both in the case of personal injury and property damage given that for both cases risk liability from driving a motor vehicle is expressly provided for (‘personal injury or property damage’: article 1.1 LRCSCVM). For property damage, however, the requirement, also established in the LRCSCVM, that the conditions of article 1902 CC (article 1.1 III LRCSCVM) be met entails that the risk liability is subject to the principle, traditionally found in the case law prior to the LRCSCVM on traffic accident damage, of inverting the burden of proof, which thus falls on the driver causing the damage and requiring that they, to be released of liability, demonstrate that they drove exercising the full duty of care.”
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