By Ellen Huet 9/30/14
Roberto Chicas, a 35-year-old San Francisco bartender, climbed into an UberX car around 2 a.m. last week and expected to get home safely. Instead, he landed in the hospital after his driver allegedly bashed in his face with a hammer after a dispute over the route.
The hammer attack left Chicas with a fractured skull and a severely bloodied eye. He was hospitalized for three days and is “in serious danger of losing his eye,” said his attorney, Harry Stern. His driver, 26-year-old Patrick Karajah, was charged with two felony counts of assault and battery and is free on $125,000 bail.
“The real issue now is whether he’s going to permanently lose his sight in his eye,” Stern said on Monday. “Right now there’s so much blood in his eye they don’t know whether that’s going to resolve. His skull is fractured. He’s going to need reconstructive surgery on his face.”
Chicas’s medical bills will cost hundreds of thousands of dollars, Stern said. And to add insult to injury, Uber has yet to refund took a week to refund Chicas’s ride, Stern said — which means Uber charged Chicas the $1 “Safe Rides Fee” it says goes toward keeping riders safe. (Update, 10/1: Uber refunded the ride about an hour after this story was published, Stern and Uber both said.)
Stern says he’s likely to sue Karajah — and Uber, too.
“There’s no doubt that the trail of liability leads back to Uber’s doorstep,” Stern said. “We believe they should pay.”
Uber clearly disagrees. Its terms of service, like those of Lyft, Sidecar, and similar sharing-economy startups like Airbnb, make it clear over and over again that they are not liable under any circumstances for bad things that might happen when you use the service.
“YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY TRANSPORTATION PROVIDER,” Uber’s terms of service say.
Ride at your own risk of hammer attack, in other words. But law experts says that a company’s terms of service are far from waterproof — plaintiff’s lawyers usually find ways to poke holes in them. So what would it take for Uber to end up paying the bill?
‘Uber Is A Technology Company, Not A Transportation Company’
Uber’s first line of defense, and one that it has trotted out many times, is that it’s a marketplace and not a transportation provider. Whether you buy it or not, that’s a key distinction because online marketplaces are protected from the offline connections they facilitate because of Section 230 of the Communications Decency Act.
Section 230 is invoked when Craigslist sellers kill buyers, when Airbnb guests trash homes, when eBay EBAY -1.38% users sell forged autographs or when online users post libelous or illegal content.
Does it apply to Uber? Uber thinks so, but experts aren’t sure. Since Uber does control some of the matchmaking — passengers can’t choose their drivers, and prices are controlled by Uber — it might not be a free enough marketplace to qualify, said lawyer Venkat Balasubramani. Even Eric Goldman, a Santa Clara University law professor who usually staunchly defends Section 230, wasn’t sure that Uber would qualify: “There’s a fine line between an online marketplace and a retailer,” he said.
Section 230′s defenses might also be crumbling. A federal judge recently ruled that a modeling website couldn’t hide behind Section 230 when it was sued for not warning its models that rapists used the site to target new victims. “Congress has not provided an all purpose get-out-of-jail-free card for businesses that publish user content on the Internet,” the judge wrote in the opinion.
Negligent Hiring or Training
Chicas’s attorney Stern believes Uber might be vulnerable in this area. Unlike other violent drivers with criminal histories who passed Uber’s “zero-tolerance” background checks – which is a whole other problem for Uber – Karajah doesn’t have a criminal history, authorities said.
But Uber could still be held liable if attorneys can show they failed to properly train drivers on how to navigate the city and how to deal with angry customers, Stern said. Proper training could arguably have prevented the route dispute in the first place or taught the driver how to defuse an argument — instead of reaching for a hammer. This approach might hold water, given that drivers say Uber doesn’t meet prospective drivers for training before sending them off onto the road.
“Part of training is how to deal with difficult confrontational situations,” said Charles Rathbone, an assistant manager with San Francisco cab company Luxor. “We teach drivers how to get out of these things.”
Lawyers could also claim that Uber didn’t adequately warn users that they ride at their own risk, especially after the modeling website ruling suggested that online marketplaces can still be found liable for “failure to warn.”
Uber assures its users it has “an industry-leading background check process, regular motor vehicle checks, driver safety education, development of safety features in the app, and more.” Meanwhile, its terms of service say you are knowingly agreeing to possibly die in an Uber and acknowledge it’s not their fault.
That disconnect might get them in trouble, Goldman said. “They could argue that Uber should have warned the customers that injury by hardware was one possible risk of agreeing to the relationship,” he said.
Are Uber Drivers Employees Or Independent Contractors?
Uber, Lyft, Sidecar and others all hire drivers as independent contractors. But there’s some argument that that’s a misclassification, given the amount of control the companies exert over drivers. Companies are usually less liable for the conduct of independent contractors than their employees. But Uber’s driver classification might not hold up in court — just like a federal court ruled that FedEx FDX -0.24% drivers were misclassified as independent contractors earlier this year.
“I think one of the risks is that there are so many specifications of being an Uber or Lyft driver is that it creates the risk of the marketplace controlling the behavior of the drivers to such an extent that they really are employees,” Goldman said.
What If This Had Been A Taxi Driver?
Taxi drivers assault passengers too. But cab companies are quick to jump on attacks like this and point out that they wouldn’t try to avoid liability in a similar incident.
“We recognize the liability stops with us,” Rathbone said. “People do not have to sign away all their rights to be a passenger in a taxicab.”
Rathbone said that Luxor’s $1 million general liability policy has an assault and battery addition, meaning it would cover attacks on riders by drivers. And a D.C. court has ruled that taxi companies are responsible for their driver’s acts if the driver is in a car with company insignia — regardless of the driver’s status as employee or independent contractor.
Uber’s liability in assaults is being tested in various cases across the country, though I haven’t yet found one where Uber has settled or paid any damages. (Uber did not respond to questions about compensating passengers for assaults but gave a boilerplate response that said, “Uber continues to connect riders and drivers with the safest rides on the road.”) In Oklahoma City, a judge dismissed Uber as a defendant from a case where a driver punched his passenger and broke his teeth, ruling that Uber’s drivers are independent contractors, not employees, and that the company was therefore not liable. An Arlington, Va. case where a driver attacked a passenger after the passenger burped is ongoing.
Even Chris Dolan, the personal injury lawyer who filed the suit against Uber in the case where a driver struck and killed a 6-year-old girl, is unsure where this will go. “We’re in uncharted territory here,” he said.
Update: Uber spokeswoman Eva Behrend sent along a new statement: “The injuries suffered by Mr Chicas are deplorable and we wish him 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.”