From: SFGate
By Carolyn Said 10/9/14
His left eye swollen shut and his face battered, Roberto Chicas met the press on Wednesday to discuss his alleged assault two weeks ago by a hammer-wielding UberX driver.
“I got in the car with my friends, and the next thing I remember was waking up in the ICU with doctors all around me,” said Chicas, 35, a San Francisco bartender. “They said I had a concussion, multiple face fractures and would need facial reconstruction surgery.” Worst of all, doctors told Chicas he might lose vision in his left eye, or the eye itself.
“The thought of losing my eye is scary,” Chicas told TV and print reporters at a press conference arranged by his lawyer.
Chicas’ case underscores the legal gray area in which Uber operates. Uber says its drivers are independent contractors, not employees. It calls itself a technology marketplace, not a transportation company. Its terms of service for passengers declare in all caps that they release the company from liability, claims or damages related to “the third-party transportation provider.”
But now, several cases, including that of Chicas and a class-action lawsuit by Uber drivers claiming that they are employees, may help clarify Uber’s responsibilities.
Harry Stern, Chicas’ attorney, says Uber is liable for the actions of its drivers. The alleged assailant, Patrick Karajah, 26, was driving for Uber’s lower-cost UberX service in which nonprofessional drivers offer paid rides in their personal vehicles.
“You can’t offer this service, reap the benefits and profits, and not take responsibility,” Stern said.
Janelle Orsi, an attorny at the Sustainable Economies Law Center in Berkeley who specializes in the sharing economy, said Uber potentially could find a defense in the Communications Decency Act, the landmark 1996 law that shields Internet companies from liability for the words and actions of those who use their services.
However, she said, the more that Uber controls the way its drivers work and how much they charge, the more it appears that those drivers might be employees.
Uber does a criminal background check on all drivers, although critics say it’s less thorough than those done by taxi companies.
While Karajah did not have a criminal record, Stern said a personal interview by Uber would have uncovered “someone who’s erratic; who wouldn’t have passed the smell test in a face-to-face interaction.” Stern was unable to say whether Uber had interviewed the driver in person and Uber did not comment on that. Karajah was charged with assault with a deadly weapon and battery with serious bodily injury, and has pleaded not guilty.
In an e-mail, Uber said: “This was a deplorable incident and we wish Mr. Chicas a quick recovery. Uber’s insurance provider is in contact with representatives of both the rider and driver, and of course we will continue to cooperate with authorities throughout the investigation.”
Ironically, Stern said, the receipt Uber e-mailed Chicas for the fateful ride included a $1 “safety fee” surcharge. That may buttress his legal claims. “It adds a layer of argument that they warrant this is safe passage and they charge for that,” Stern said.
Taxi drivers are self-employed independent contractors, but taxicab companies take responsibility for their actions, saidCharles Rathbone, assistant manager of Luxor Cabs.
“In a case like the Uber hammer attack, Luxor would recognize that the liability rests with us,” he said in an e-mail. “Our general liability policy provides coverage up to $1 million, including for assault and battery. Taxi companies do not ask passengers to sign away their legal rights as a condition of getting a ride. Uber does that in its terms of service.”
But Orsi said that the Uber disclaimer may not hold up in court.
“Those waivers are only enforceable when the person agreeing to it absolutely understands what they’re getting into, the risks they’re taking on and the rights they’re waiving,” she said. “When embedded in the terms of service that people don’t read, courts are likely to say they’re unenforceable.”
As for Chicas, he’s just focused on healing.
Calling an Uber car at the end of the night, “was supposed to be the responsible, safe thing,” he said. “Instead it’s one of the scariest things I’ve ever experienced.”