2023 Winning Essay
Anton Karp
Binghamton University – Economics and Physics
Rideshare companies should be held liable for assault or harassment of riders by drivers even though they are classified as independent contractors in most states in the US. Rideshare companies do not only trade in transportation services, they sell safety. Failure to deliver on the promise of safety can be pursued in court through claims of negligent hiring/retention, respondeat superior in the case of a non-delegable duty, and the increasing relevance of common carrier liability.
Safety may be argued to be a non-delegable duty. Such a duty cannot be passed on to an independent contractor by a company without liability. One legal reasoning for such a view is that a customer perceives the rideshare company as responsible for their safety. When someone views an ad claiming “the safest rides on the road” or orders a car at night or provides their home address to a stranger, they are not considering the legal caveats that determine that the driver rather than the company they represent is responsible for their safety. This was the logic used in Mduba v. Benedictine Hosp, 52 A.D.2d 450, 384 N.Y.S.2d 527 (N.Y. App. Div. 1976) and Kleeman v. Rheingold, 81 N.Y.2d 270, 598 N.Y.S.2d 149, 614 N.E.2d 712 (N.Y. 1993) for cases of hospitals with blood procurement and law firms with court notice delivery respectively. The reasoning for these rulings was partially that it is in society’s interest to take steps to preserve public trust in hospitals and lawyers. Whether the same holds true for transportation companies is arguable.1 Additionally, if it can be demonstrated that drivers are in a position of authority over the rider, which would have been established by the company organizing the ride, the company could be liable for their abuse of that position. Such an argument was used in Walker v. Weight Watchers Intern., 961 F. Supp. 32 (E.D.N.Y. 1997), Mary M. v. City of Los Angeles, 814 P. 2d 1341 – Cal: Supreme Court 1991, and others. The authority of the perpetrators in these cases more obviously stemmed from their occupations than that of the rideshare driver. On the other hand, a driver with the ability to lock the passengers’ doors certainly has a measure of authority over the rider.
There are ways to work around the confines of the independent contractor designation. The argument that rideshare companies are business partners with their drivers has promise. Business partners share liability in cases where the tort was committed in an area where they share business. The premises of a car, during a drive would certainly qualify as such. It has not yet been explored comprehensively in court, although it has warranted an aside in the past.2 The case of the European Union, although obviously not precedential, may be instructive. There, legislature has entrenched the position of drivers as partners, increasing the liability of rideshare companies.3 This distinction is not arbitrary, drivers for Uber were referred to as “driver-partners”.4 Arguing this point provides a path to finding companies liable without any legislative or precedential changes.
1- McMahan, S. A. (2018). Moving to Dismiss: Ridesharing and Assaults, and the Emerging Legal Frontier. Trial Advocate Quarterly, 37(2), 11–14
2- Hoffman v. Silverio-Delrosar, Dist. Court, D. New Jersey 2021
3- Domurath, I. (2018). Platforms as contract partners: Uber and beyond. Maastricht Journal of European and Comparative Law, 25(5), 565–581. https://doi.org/10.1177/1023263×18806485
4- https://lawprofessors.typepad.com/business_law/2018/08/are-uber-driver-partners-a-liability-time-bomb-.html
Several states have ruled, legislatively, that transport network companies (TNCs), the official name for rideshare companies, may not be classified as common carriers for the purposes of liability. This does not extend a higher degree of care, and therefore liability to these companies. This distinction has not been supported judicially5; no state Supreme Court has supported a separate, lower liability status for TNCs. Lyft recently settled a case questioning its classification that was due to appear before the Illinois Supreme Court.6 However, the trend of the legislature seems to be towards the revocation of TNCs’ special status. Illinois has a 2028 date set for the reinstitution of common carrier status for TNCs7, and several other states have equivalent bills at some stage of development. The implications of common carrier status for TNCs are huge for the demonstration of companies’ liability.8 Not only is liability for the safety of passengers extended to the company, but it is irregardless of the business relationship between the driver and the company.
While the common carrier argument can always be applied, assuming it is in a state where it can be applied, negligence is circumstantial. Although the standard of hiring at top rideshare companies has increased in recent years, their background checks remain less thorough than most taxi cab companies. The lack of fingerprinting in particular has been highlighted as a contributor to fraud. This oversight can be used in cases of offending drivers with past misconduct, such as happened in Doe v. Uber Technologies, Inc., 184 F. Supp. 3d 774 – Dist. Court, ND California 2016, in Fusco v. Uber Techs., Inc., CIVIL ACTION No. 17-00036 (E.D. Pa. Jul. 27, 2018) (although only after the dismissal of the case), and a number of others. The screening steps taken by a comparable, taxi, company are a feasible way that rideshare companies could have been expected to find out about past misconduct. That they do not in a certain case, is reflective of negligent hiring and/or retention, which is a, admittedly very case-specific, manner of finding a company liable for its driver’s torts.
It would be difficult to prove the liability of a rideshare company for a tortious act committed by a rider to the driver. Again, the prospects of any litigation on these grounds are hindered by the classification of
5 – O’Connor v. Uber Technologies, Inc., 82 F. Supp. 3d 1133 – Dist. Court, ND California 2015
6 – Jane Doe v. Lyft Inc., et al., Case No. 19-1328, in the Appellate Court of Illinois, First District.
7- https://www.sj-r.com/story/news/politics/state/2023/05/09/lawmakers-look-to-end-common-carrier-exemption-for-ride-share-companies/70201376007/
8- Sachs, R. (2016). The Common Carrier Barrier: An Analysis of Standard of Care Requirements, Insurance Policies, and Liability Regulations for Ride-Sharing Companies. DePaul Law Review, 65(2), 872–906.
9- https://www.cbsnews.com/news/uber-to-step-up-driver-background-checks/”>https://www.cbsnews.com/news/uber-to-step-up-driver-background-checks/”> https://www.cbsnews.com/news/uber-to-step-up-driver-background-checks/
10- https://venturebeat.com/transportation/lyft-rolls-out-continuous-background-checks-for-drivers-and-enhanced-identity-verification/
11- https://www.bostonglobe.com/business/2017/04/05/uber-lyft-ride-hailing-drivers-fail-new-background-checks/aX3pQy6Q0pJvbtKZKw9fON/story.html
12- Fobb v. Uber Technologies, Inc., Dist. Court, ND California 2022″
13- McPeak, agnieszka A. (2017). Regulating Ridesharing Platforms Through Tort Law. University of Hawai’i Law Review, 39, 357–394.
Drivers as independent contractors. The contractee, the rideshare company, has limited legal control over its drivers. Most notably, drivers may refuse customers and choose their own paths to their destinations. This arrangement shields companies from liability for passengers’ tortious conduct. Petone v. Uber Technologies, Inc., Dist. Court, D. Maryland 2022 was a lawsuit alleging Uber’s liability for the murder of a driver by a passenger high on PCP. The driver had the opportunity to refuse the passenger, who, Uber claimed, should have been identified as a potential danger by the driver. The contractor’s freedom to choose his work informed the court’s ruling in favor of Uber with regard to negligence.
However, plaintiffs have argued that drivers’ realities are very different from their nominal autonomous classification. In most companies, the driver’s freedom to choose fares is not absolute. Any cancellations incur penalties14 that tangibly affects the drivers’ income. For a low-wage worker15, these material setbacks are not always viable options.
Petone v. Uber took a novel approach to the classification of drivers. Pointing to the fact that drivers pay Uber for every ride, the plaintiff argued that they, like riders, are customers of Uber. The plaintiff further asserted that drivers in their capacity as customers, driving for Uber, are business-invitees. This latter label extends a greater level of responsibility for the safety of drivers while they are in the premises of the licensee, in this case the car. As of now, the relevance of the business-invitee is marginal. There is little caselaw or legislature on the business-invitee relationship outside of the bounds of “brick-and-mortar” premises. Perhaps, this is reflective of a lag in applying existing law to online platforms, but currently it is not a viable way to hold rideshare companies liable for passengers’ actions.
Although the client relationship provides a solution to the complications of the independent contractor designation, it remains difficult to demonstrate that any incidents that happen to drivers should be foreseen by a company. Rideshare companies have only the credit card information of their passengers, and oftentimes not even that much in the case of third-party riders. Without background information, companies cannot be accused of negligence like in the case of drivers with criminal records. Nor should these companies be obliged to ask for this sort of information. Accepting that a rideshare company could be negligent for not checking a rider’s criminal records would have implications for former convicts’ access to rideshare as well as a plethora of other services that put an employee in close contact with the client. Recent developments have changed the legal landscape with regards to foreseeability. Reportedly, the proportion of sexual assaults perpetrated by riders has grown from just 7% in 2017 and 2018 to 43% in 2020.16 17 This trend may greatly strengthen the case of drivers, but has not yet been shown in court. Generally speaking, rideshare companies should not be held liable for misconduct suffered by their drivers. Although case-specific arguments, that parallel similar independent-contractor arguments18, may work.
14- https://www.theguardian.com/business/2023/mar/10/uber-lyft-driver-suspension-deactivation-pay
15- https://www.nytimes.com/2023/01/12/nyregion/cab-uber-lyft-drivers.html
16- https://www.cnn.com/2022/06/30/tech/uber-safety-report/index.html
17- https://www.abuselawsuit.com/rideshare-assault/uber-lawsuits/driver-assaulted-by-passenger/
18- See Marley v. Ibelli, 203 F. Supp. 2d 302 (S.D.N.Y. 2001) for a structure for arguing that the proximity of the setting of a car may lead to verbal harassment