Hoverboards are great: they are a fun way to get from Point A to Point B, easy to use (after a little wobbly practice), lightweight, and portable. Hoverboards are like Segways without handlebars; they are self-balancing and allow the operator to accelerate, turn, and stop. However, major airlines have banned the popular device du jour for safety reasons, as have some major online retailers, and the New York City Police Department tweeted that the devices would be deemed an illegal motorized scooter under NYC Admin. Code 19-176.2 if used on the public streets.
And, there is another potential downside. According to a complaint filed in the Northern District of Indiana, they may unexpectedly explode and catch fire. The claimant, Michael Brown, filed a putative class action against Swagway, LLC, a manufacturer of hoverboards, and Modell's Sporting Goods, Inc., the popular sporting goods store, after a hoverboard that Brown purchased for his children allegedly exploded while charging, damaging his home (Brown v. Swagway, LLC, No. 15-588 (N.D. Ind. filed Dec. 10, 2015)). Brown seeks both to enjoin Swagway and Modell's from selling more hoverboards, and monetary relief for economic losses and other damages on behalf of a class. Brown's allegation is but one of a number of reported instances of brands of self-balancing two-wheeled electric scooters, or hoverboards, that allegedly malfunctioned and caught fire (similar to laptops and mobile phones, hoverboards have lithium ion batteries that can become flammable if the battery short circuits).
According to his complaint, Brown purchased a hoverboard for his children from Modell's website as a Chanukah present and had it shipped to Indiana. On the very first night of Chanukah, Brown alleges his children used the hoverboard for about 30 minutes, after which he plugged it in to charge – some 45 minutes later, the hoverboard burst into flames. Short story made even shorter, the fire department arrived and extinguished the fire. Although fortunately it does not appear that anyone was injured, the whole ordeal left a charred mess on Mr. Brown's floor.
Rather than making a trip to the local home improvement store to buy some new flooring, Mr. Brown made a trip to his lawyer to bring the above-mentioned action against Modell's and Swagway. In his complaint, Brown brought a claim for breach of an implied warranty, arguing that the hoverboard was advertised as safe and fit for ordinary use, but that it was in fact unsafe and defective. Brown also brought a New York consumer protection claim underN.Y. Gen. Bus. Law §§ 349 et seq., arguing that the defendants engaged in unfair and deceptive acts in the sale of the allegedly defective products, and profited as a result. In response, Modell's filed a motion to dismiss to strike Brown's request for class certification, arguing that Brown failed to show a proposed class suffered comparable damages, or cite any other incidents involving allegedly defective hoverboards purchased from Modell's, or that the class even had standing to sue based upon the risk of a "certainly impending" injury. Modell's further argued that the Indiana court lacked personal jurisdiction over it because Modell's does not have "minimum contacts" with Indiana (e.g., Modell's argues that it maintains no stores in the state, its e-commerce website does not target forum residents, and its dealings in the state are limited to its contract with Swagway). Similarly,Swagway also filed a motion to dismiss, raising similar arguments about defects in class certification and also claiming that Brown cannot pursue injunctive relief because he is not at future risk of economic injury and already has adequate remedies available at law. Whether Brown can successfully balance the statutory and jurisdictional issues remains to be seen.
Meanwhile, the heat remains on hoverboard makers. In February 2016, the U.S. Consumer Product Safety Commission (CPSC) issued a letter urging manufacturers of self-balancing scooters to test their lithium ion battery products to ensure they meet the voluntary UL safety standards. In response, Swagway issued a statement in February advising customers to stop using their hoverboards in the interim.
With unsettling videos online of hoverboards catching fire,or even burning down houses, it is doubtful we have heard the last word from regulators or affected consumers. Indeed, over the course of a few months, hoverboards have gone from one of the most popular items of the holiday season to one of the most volatile. Unfortunately for the plaintiff Michael Brown, he chose the hottest gift of the holiday season.