Hoverboards: Gliding Toward Oblivion?

In the brief period of time since they were introduced to the market, hoverboards have been responsible for a tremendous amount of litigation and legislation as vendors, manufacturers, government agencies, and consumers struggle to address the growing list of problems posed by these products. Already, hoverboards have been linked to spontaneous fires and explosions, collisions, serious personal injuries and property damage, and numerous transport problems because their lithium batteries are considered to be "hazardous materials."     

California recently became the first State to pass regulations that specifically apply to hoverboards. The recently enacted AB 604 requires riders of "electrically motorized boards" to be above the age of 16, to wear a helmet, and to restrict use to certain roads with speed limits of 35 mph or less. Additionally, the bill provides local governments with discretion to determine whether boards can be ridden in bike lanes or on sidewalks, and thus creates the possibility that where a board can be ridden may change from county to county.  

Following in California's footsteps, New York has proposed amendments to its vehicle and traffic laws that specifically identify hoverboards as a separate class of vehicles (self-balancing devices having two wheels on a single axle). These proposed regulations prohibit reckless use, require that protective gear be worn, and authorize the State to accept and investigate claims of explosions or ignitions of hoverboards, including inquiries into the conduct of manufacturers and retail sellers.

While states are attempting to tackle issues arising from the everyday use of hoverboards, the federal government has begun to issue regulations regarding their transport. To that end, the Department of Transportation has issued a safety alert regarding the transportation of hoverboards, stating that their shipment is governed by existing national and international regulations regarding the transport of lithium batteries. DOT considers lithium batteries to be a "hazardous material" because they are an ignition source if not properly prepared for shipping, and they can even be an explosion risk in certain conditions. DOT also cautioned airline travelers that most commercial airlines have banned hoverboards as either carry-on or checked baggage, and other airlines will only transport a hoverboard with prior approval (and even then, only certain low-powered models). Similarly, the International Air Transport Association and Consumer Product Safety Commission, among other private and public organizations, have issued statements about safety concerns with hoverboards.  

Not surprisingly, civil litigation has been common, with users suing hoverboard manufacturers and vendors over exploding batteries and poorly made components. See e.g., Brown v. Swagway, LLC, Case No. 15cv00588 (N.D. Ind. 2015) (alleging that lithium battery exploded during charging, causing the plaintiff's house to catch on fire). 

The increasingly complex regulatory environment creates a number of problems for manufacturers, vendors, and consumers:

• Hoverboard manufacturers will be closely scrutinized to ensure that they are compliant with all laws regarding the manufacture, labeling, advertising and shipment of hazardous materials. Manufacturers can also expect to have any foreign-manufactured lithium batteries subjected to rigorous inspection and testing.

• Vendors will need to be aware of their state's liability laws to determine to what extent they can be liable for selling defective products. 

Consumers, in addition to complying with all travel restrictions, will need to be aware of all state and local ordinances regarding the use of hoverboards, including age restrictions and any required safety gear. Consumers will also need to be aware of personal liability should they collide with a pedestrian or another vehicle. Hoverboards are viewed skeptically by the public, and a hoverboard rider is unlikely to receive the benefit of the doubt if there is a question about who caused a collision.

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Other Articles in This Month's Edition:

• Sports Stars Take on Video Game Makers: Right of Publicity or First Amendment? The Supreme Court May Decide
• Sluggers Hit News Network with Defamation Suit Over Reports of Performance-Enhancing Drugs
• Spurned St. Louis Rams Fans Sue L.A.-Bound Team for Deceptive Marketing
• Battling Counterfeits: Supply Chain Management and Regulatory Tools Help Protect against Harmful Counterfeit Products
• Supreme Court Limits Effect of Rule 68 for Class Actions in Campbell-Ewald
• Advertisers in the Ring — A Roundup of This Month's Competitor Advertising Challenges: Resolve to Watch the Scope of Claims — and NAD Jurisdiction

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