Introduction
Two-wheeled personal mobility devices, or hoverboards, were the ubiquitous holiday gift in 2015. Small, new and exciting, these contraptions quickly shot to the top of the wish list for many individuals, even those not technologically savvy. Once the wrapping paper was cleared, however, hoverboards were revealed to present very real risks of danger. In fact, one popular video showed “Iron” Mike Tyson being dealt a knock-out blow from a hoverboard fall. But the potential for falling is not the only hazard presented by hoverboards. What came as a surprise to many were the fires caused by the spontaneous combustion of hoverboards, both when in use and not in use.
Hoverboard Fire Risks
Since the 2015 holiday season, there have been a number of reports of hoverboard fires:
- On December 9, 2015, a hoverboard “exploded” and caught fire at shopping mall kiosk in Auburn, Washington. One witness stated that even after the hoverboard had been covered with fire retardant, it “still exploded again.”
- In a February 20, 2016, USA Today article, hoverboards were blamed for having caused at least 52 fires resulting in over $2 million in property damage. Fire officials recommended that owners only use manufacturer-supplied charges, follow manufacturer-recommended charging times, and not leave the unit plugged in overnight.
- In February 2016, the Nashville Fire Department reported that two separate fires were caused by hoverboards. In one instance a hoverboard started a fire which destroyed a $1 million home, causing minor injuries to two teens who were forced to escape out of second-story windows. Friends of that same family encountered a similar issue when a hoverboard purchased in the same batch also caught fire.
- On March 6, 2016, a hoverboard burst into flames at a condominium in Arlington, Washington. The fire was caused by a hoverboard that overheated after having been left plugged into an outlet.
As these events occurred, the U.S. Consumer Product Safety Commission was investigating hoverboard safety.
United States Consumer Product Safety Commission Investigation
On December 20, 2015, the U.S. Consumer Product Safety Commission (“CPSC”) issued a notice which stated that it was aware of potential hoverboard safety issues and that hoverboards were under investigation. At that time the CPSC recommended that consumers avoid purchasing hoverboards from kiosks or other locations where product information could not be verified. In addition, the CPSC also recommended that hoverboards only be charged when they could be observed, that they be charged away from combustible items, and that they not be charged immediately after riding to minimize the risk of overheating. A month later, on January 20, 2016, the CPSC issued another notice in which it provided the status of its hoverboard investigation and identified the manufacturers under investigation. The CPSC also emphasized that in addition to their risk of fire, hoverboards also presented a risk of falling, and noted that a number of colleges, universities, and other institutions and other organizations had prohibited the use of hoverboards at their locations. In its notice, the CPSC recommended that consumers:
- Have a working fire extinguisher nearby while charging or using hoverboards
- Charge hoverboards in an open area away from combustible materials
- Wear protective gear when riding hoverboards
- Avoid using a hoverboard on or near a road
On February 18, 2016, the CPSC issued a letter directive to manufacturers, importers, and retailers of self-balancing scooters indicating that all hoverboards imported, manufactured, distributed, or sold in the United States should comply with the voluntary safety standards contained in UL 2272 – Outline of Investigation for Electrical Systems for Self-balancing Scooters (“UL 2272”) released by Underwriters Laboratories on February 2, 2016, and that all lithium ion batteries must comply with the test requirements under UN/DOT 38.3 Transport of Dangerous Goods for Lithium Metal and Lithium Ion Batteries (“UN/DOT 38.3”).
Significantly, the CPSC stated that any hoverboards that did not meet UL 2272 and UN/DOT 38.3 standards were to be considered “defective” and “may present a substantial product hazard” under Section 15(a) of the Consumer Product Safety Act (“CPSA”), 15 U.S.C. § 2064(a). The CPSC also indicated that it would seek detention and/or seizure for any such items identified at import, and potentially seek a recall of such products identified within the United States.
Hoverboards Under Michigan Law
Michigan law applicable to hoverboards appears to apply to their use, not storage. Hoverboards would most likely fall within the definition of an “electric personal assistive mobility device” (“EPAMD”) as defined by the Michigan Vehicle Code, MCL 251.13c. The definition of an EPAMD appears to have been intended to apply to Segways, but since an EPAMD is defined as “a self-balancing 2-wheeled device, designed to transport only 1 person at a time,” until a more specific definition is adopted for hoverboards the EPAMD definition should be considered to include hoverboards. Each person riding an EPAMD “has all of the rights and is subject to all of the duties applicable to the driver of a vehicle under this chapter, except for special regulations . . . and except for the provisions . . . that by their nature do not apply.” MCL 257.657. This includes obedience to traffic laws. MCL 251.601, et seq. Among these traffic laws are several provisions which could potentially impact the use of hoverboards. For example, an EPAMD operated after sunset must contain certain lighting and reflective material. If not, the operator is responsible for a civil infraction. MCL 257.662. In addition, the operation of an EPAMD requires a crash helmet, MCL 257.658b, and if a rider does not have a crash helmet they would be subject to a civil infraction. These are laws of general application which could be construed to apply to hoverboards.
Hoverboards, Condominium Associations, and Homeowner Associations
Condominium associations and homeowner associations are faced with a number of issues in dealing with the storage and use of hoverboards that require more than just laws of general application. First, there is the potential risk of fire for stored hoverboards, especially if they are charging or being stored near combustible material. Condominium associations with attached units are particularly susceptible to this risk because of the possibility that a fire in one unit could damage adjoining units. Second, there is a risk that a hoverboard could combust during use. Third, there is the risk in falling or in misuse that arises out of the inherent use of the hoverboard.
With respect to condominium associations and homeowner associations, the Michigan Vehicle Code allows owners of real property to regulate and/or prohibit vehicle use on their property. MCL 257.607. Accordingly, even though a hoverboard operator most likely has all the “rights” of an operator of a motor vehicle, an association should be empowered to adopt reasonable bylaws or rules and regulations regarding the operation of a hoverboard on community property. In addition, it is possible, if not likely, that a condominium association or homeowner association’s existing bylaws or rules and regulations regarding the use of a bicycle, skateboard or motorized scooter apply equally to hoverboards.
It is less likely, however, that a condominium association or homeowner association’s bylaws or rules and regulations would sufficiently address the fire risk presented by hoverboards. Accordingly, an association should review its bylaws and its rules and regulations to ensure that such a risk is adequately addressed. This is especially true for condominiums with attached units. In assessing its bylaws and rules and regulations, an association should take into account several possible alternatives, including:
- The outright prohibition of hoverboards on condominium property;
- A requirement that any hoverboards on condominium property comply with all product safety requirements, including UL 2272 and UN/DOT 38.3;
- The prohibition of the storage of a hoverboard within a unit;
- Adopting limitations on charging, such as requiring someone to be physically present while charging, prohibiting overnight charging, requiring that the hoverboard be charged no less than an hour after use, and/or requiring that hoverboards be charged in an open area away from combustible material; or
- Requiring hoverboard operators/owners to indemnify the association in case of loss due to hoverboard storage or use.
In adopting rules and regulations regarding the storage and/or use of hoverboards, an association should be careful not to violate the Fair Housing Act (“FHA”), 42 U.S.C. § 3604, et seq. In part, the FHA prohibits discrimination against families with children. Section 3604(b) of the FHA makes it unlawful to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of service or facilities in connection therewith, because of . . . familial status.” 42 U.S.C. § 3604(b). “Familial status” is defined as “one or more individuals (who have not yet attained the age of 18 years) being domiciled with . . . a parent or other person having legal custody of such individual or individuals.” 42 U.S.C. § 3602(k)(1). A plaintiff may bring an action under § 3604(b) by alleging disparate treatment or disparate impact. Budnick v. Town of Carefree, 518 F.3d 1109, 1114 (9th Cir. 2008). A plaintiff may establish a prima facie violation of § 3604(b) by establishing the existence of “facially discriminatory rules which treat children, and thus, families with children, differently and less favorably than adults-only households.” U.S. v. Plaza Mobile Estates, 273 F. Supp. 2d 1084, 1091 (C.D. Cal. 2003).
If an association were to adopt rules and regulations limiting the use of hoverboards which were determined to constitute discriminatory rules which treat children, and thus, families with children, differently and less favorably than adults-only households, then that association could potentially be susceptible to a discriminatory housing claim under the FHA. Accordingly, in fashioning its rules and regulations regarding the storage and use of hoverboards, an association should be careful to avoid any restrictions which could be construed to treat children less favorably than adults.
Summary
The sheer number of hoverboard manufacturers appears to have contributed to both their pervasiveness and, most likely, the absence of uniform product standards. Now that UL has adopted voluntary safety standards, and since the CPSC has indicated that manufacturers are to comply with these safety standards, it is possible that the fire risks presented by the first generation of hoverboards will not be present in the next generation. No one knows, however, how many first generation hoverboards are within their community. In addition, no one can predict whether every hoverboard operator will use the hoverboard safely. With respect to both their storage and use, condominium associations and homeowner associations should consider whether it should amend their bylaws and rules and regulations to address the risks presented by hoverboards.
Matthew W. Heron is a Member of Hirzel Law, PLC where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, land use, large contractual disputes and title litigation. He has extensive litigation and trial experience in state and federal courts involving commercial litigation issues and real estate matters. Mr. Heron concentrates his practice on drafting, revising, amending, restating and interpreting governing documents of condominium and homeowner’s associations in Michigan. He can be reached at (248) 478-1800 or mheron@hirzellaw.com. You can also follow him on Twitter at @mwheron75.