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Court of Appeal:
Uber Isn’t Liable for Rapes by Men Posing As Its Drivers
Opinion Rejects Contention That Company, As a Common Carrier, Has a Special Duty to Would-Be Passengers,
Creating a Duty to Warn Women in Five-Mile Zone in Los Angeles County of Dangers Posed by Imposters
By a METNEWS Staff Writer
Uber has no duty to warn women seeking rides in areas of West Los Angeles and downtown Los Angeles that rapists are known to pose as authorized drivers in those zones, committing abduction and rape, the Court of Appeal for this district declared yesterday.
Div. One, in an opinion by Presiding Justice Frances Rothschild, affirmed a judgment of dismissal that followed an order by Los Angeles Superior Court Judge Marc H. Epstein sustaining demurrers to a second amended complaint brought by Jane Doe Nos. 1, 2, and 3 against Uber Technologies, Inc. and two wholly owned subsidiaries.
Although the three women sued under theories of negligence and strict products liability, they appealed only on the basis of Epstein’s rejection of their cause of action for negligence.
Appeals Court’s Holding
Rothschild wrote:
“On the facts alleged, the Uber entities were not in a special relationship with the Jane Does that would give rise to a duty to protect the Jane Does against third party assaults, or to warn them about the same. The complaint thus did not allege actionable nonfeasance. Nor does the complaint allege actionable misfeasance, because the Uber entities’ alleged actions did not create the risk that criminals would take advantage of the existence of the Uber app to abduct and rape women trying to use it. Although it is foreseeable that third parties could abuse the platform in this way, such crime must be a ‘necessary component’ of the Uber app or the Uber entities’ actions in order for the Uber entities to be held liable, absent a special relationship between the parties.”
Leave to amend, to stick in allegations the plaintiffs propose, would not establish liability, the presiding justice said.
Inebriated Young Females
Each plaintiff was a young women who, inebriated after partying, used an Uber app on her cell phone to arrange to be picked up by an actual Uber driver. However, an imposter pulled up, she entered the vehicle, and was raped.
Only one of the women noticed that the license plate of the vehicle did not match that which Uber had supplied to her, but the driver explained away the discrepancy. Uber also supplies the name of the authorized driver and a photo.
The complaint alleges:
“Defendants fail to take into consideration that the customer they market to are typically inebriated, causing enhanced difficulty in using this ‘matching system.’ This is evidenced by multiple reports of women mistakenly entering the vehicle of imposter Uber drivers and subsequently being assaulted. With this knowledge, Uber Defendants continuously refuse to implement any further safety features that would better warn and notify an inebriated individual, such as an Amber Alert style in app warning system, or a four digit pin number or color coding display, and continue to jeopardize the public’s safety.”
Uber’s website “has a ‘print at home’ feature where anyone with a computer and a printer can print out the identifying emblem to affix to any vehicle,” the pleading notes.
Uber’s Alleged Knowledge
The plaintiffs asserted that Uber had knowledge that the crimes were being committed in a five-mile area of Los Angeles County, and were aware that the women were at pick-up points that were unsafe, yet did not advise going to a less dangerous location.
In 2017, Doe 1 was picked up at the Revolver on Santa Monica Boulevard in West Hollywood, 137.8 feet from where another women got into a vehicle six weeks earlier, with an Uber-related sexual assault occurring, the complaint sets forth. It says that, also in 2017, Doe 2 entered a vehicle at the Down and Out at 501 South Spring Street, also “a known dangerous pick up location.”
That description was also given to the Pump on Santa Monica Boulevard in West Hollywood where Doe 3 in 2018 mistook the rapist’s vehicle for that of an Uber driver.
Does 1 and 3 were victims of Walter Velasquez, a “serial rapist.” He was apprehended, pled guilty, and was sentenced to eight years in prison.
Doe 2’s alleged assailant was Nicholas Morales, charged with raping seven women who mistook him for an Uber driver.
Civil Code Section
The Does relied on Civil Code §2100 which provides:
“A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.”
The complaint avers that Uber is in violation of that section “where they failed to use the utmost care and diligence for the Plaintiffs as they did not provide safe carriage or provide a reasonable and simple warning to Plaintiffs through the Uber App product hailing device.”
The heightened duty of a common carrier does not apply, Rothschild said, given that the Does were not being transported by Uber. To impose such a duty on the basis of Uber directing a person to a pick-up location “stretches the reasoning underlying the common carrier-passenger special relationship too far,” she wrote, adding:
“[N]o federal or California case supports the Jane Does’ contentions that, absent the unique level of control over a plaintiff’s safety associated with traveling on a common carrier and/or the physical hazards of common carrier transportation—neither of which have been alleged here—a common carrier and a potential passenger have a special relationship justifying a heightened duty of care.”
Promises Safety
The complaint says that Uber “consistently markets itself to the general public as one of the best options for a safe ride home after a night of drinking alcohol,” pointing out that its website provides this assurance:
“Safe pickups.
“The Uber app automatically finds your location to provide door-to-door service. That means you stay safe and comfortable wherever you are until your driver arrives.”
It maintains:
“The unwitting public, and in particular women looking for a safe ride home, have been lulled into believing that use of the Uber App product summons a safe means of transportation. Instead, once the Uber App product has been engaged, single female passengers leaving crowded nightclub/bar/restaurant locations become vulnerable to the FAKE UBER scheme.”
No ‘Specific Promise’
Rothschild responded:
“The facts alleged are not sufficiently definite or explicit to constitute a ‘specific promise’ that the Uber entities would undertake a legal duty to protect from third party misconduct….Therefore, the language on the Uber website on which the Jane Does rely is not an enforceable promise to protect against third parties while waiting for an Uber driver on a public street.”
The case is Doe v. Uber, 2022 S.O.S. 2368.
Pending before the U.S. District Court for the Northern District of California is a case titled Doe v. Uber. On May 11, Judge Jacqueline Scott Corley granted Uber a stay in that proceeding pending a decision by the California Court of Appeal, saying that while the facts are not identical, the decision “could be informative.”
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