This tort suit was brought by Jane Doe 1 and Jane Doe 2 against Uber Technologies, Inc., stemming from separate alleged sexual assault incidents.
In February 2015, in Boston, Massachusetts, Doe 1 and her friends used the Uber app to get a ride after they had gone to a party. An Uber driver named Abderrahim Dakiri picked up Doe 1 and her party. Dakiri dropped off Doe 1’s friends first. With Doe 1 the sole remaining customer in the Uber, Dakiri subsequently began to sexually assault her, taking a circuitous route “in order to increase his opportunity to sexually assault her,” and parking the car in a remote area.
In August 2015, in Charleston, South Carolina, Doe 2 and her friends arranged a ride using Uber’s app. Uber driver Patrick Aiello drove Doe 2 and her group to a bar and someone in the group asked Aiello if he would agree to pick them up later. Aiello eventually drove Doe 2 and her friends to one of the group’s apartment. While still in the Uber driver’s car, Doe 2 mentioned she could not find her phone and wanted to search for it in the apartment. Doe 2 searched for the phone and then left, intending to walk back to her own apartment. When Doe 2 went outside, Aiello was waiting and offered to drive her home. Doe accepted under the assumption that Aiello was still acting as an Uber driver. Aiello subsequently raped Doe 2.
The plaintiffs brought suit against Uber under six claims for relief, four of which rely on a theory of respondeat superior. Uber moved to dismiss the complaint for failure to state a claim.
JUDGE ILLSTON Uber urges the Court to dismiss plaintiffs’ claims 3 through 6, which rely on a theory of respondeat superior. Uber argues that plaintiffs have not alleged sufficient facts to establish that there is an employment relationship between Uber and drivers Dakiri and Aiello. Uber alternatively argues that it cannot be vicariously liable because, it claims, sexual assault falls outside the scope of an employee’s duties.
Under California law, “an employer may be held vicariously liable for torts committed by an employee within the scope of employment.” The parties dispute whether Uber drivers are employees of Uber; plaintiffs allege that they are and defendants argue that they are not employees but are independent contractors.
Whether an individual is classified as an employee or as an independent contractor depends on “whether the person to whom service is rendered has the right to control the manner and means of accomplishing the result desired.” While control is the key factor, California courts have recognized other indicia as relevant to defining employment status …“[s]trong evidence in support of an employment relationship is the right to discharge at will, without cause.” “The parties’ label is not dispositive and will be ignored if their actual conduct establishes a different relationship.”
As this multiple-factor approach suggests, a person’s status as an employee or independent contractor is a question of fact, but may be determined as a matter of law “if from all the facts only a single inference and one conclusion may be drawn….”
Here, plaintiffs have alleged sufficient facts to claim plausibly that an employment relationship exists. In support of this assertion, plaintiffs have alleged that Uber sets fare prices without driver input and that drivers may not negotiate fares. If a driver takes a circuitous route, Uber may modify the charges to the customer. Uber retains control over customer contact information. Uber’s business model depends upon having a large pool of non-professional drivers. There are no apparent specialized skills needed to drive for Uber. Uber retains the right to terminate drivers at will.
Uber also controls various aspects of the manner and means by which drivers may offer rides through the Uber App. Among these, plaintiffs have alleged that Uber requires drivers to accept all ride requests when logged into the App or face potential discipline.
Certain factors, as alleged, support Uber’s assertion that drivers are independent contractors, though not enough to convert the question into a matter of law.
These include that the drivers generally do not receive a salary but are paid by the ride and that the drivers supply their own cars and car insurance. Even these factors, however, are not necessarily dispositive. It matters not whether Uber’s licensing agreements label drivers as independent contractors, if their conduct suggests otherwise.
Other judges in this district have ruled likewise in similar cases. In O’Connor v. Uber Technologies, Inc., Judge Chen found that plaintiff Uber drivers had sufficiently alleged the existence of an employment relationship …In Cotter v. Lyft, Inc., Judge Chhabria denied a summary judgment motion brought by software app operator Lyft.
It may be that facts will ultimately be revealed that disprove plaintiffs’ allegations or that tilt the scales toward a finding that Uber drivers are independent contractors. However, taking the allegations in the Amended Complaint as true, plaintiffs have alleged sufficient facts that an employment relationship may plausibly exist.
Uber argues in the alternative that it cannot be vicariously liable for Aiello and Dakiri’s acts because “sudden sexual assaults by employees are outside the scope of an employee’s duties and cannot support employer liability.”
This is not necessarily so under California law. “For the doctrine of respondeat superior to apply, the plaintiff must prove that the employee’s tortious conduct was committed within the scope of employment.” This analysis asks whether “in the context of the particular enterprise an employee’s conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” As guidance, courts in California consult three policy goals underlying the respondeat superior doctrine: “preventing future injuries, assuring compensation to victims, and spreading the losses caused by an enterprise equitably….” Whether an employee was acting within the scope of employment is a question of fact, unless “the facts are undisputed and no conflicting inferences are possible.”
With respect to sexual misconduct by an employee, the California Supreme Court has not declared, as Uber would have it, that such acts always bar vicarious liability on the part of the employer. In Mary M., the California Supreme Court held the city of Los Angeles liable when a police officer, after detaining a woman during a traffic stop, followed the woman to her home and raped her. Several years later, however, in Lisa M., the court found that an ultrasound technician was not acting within the scope of his employment when he molested a patient during an examination …
In this case, which is only at the pleading stage, foreseeability and policy rationales weigh in favor of allowing the complaint to move forward on the scope of employment question. It may be that sexual assault by a taxi driver (or a taxi-like driver, as the case may be) “is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” Assaults of this nature are exactly why customers would expect taxi companies to perform background checks of their drivers. Holding Uber liable could also forward the underlying policy goals of respondeat superior, including prevention of future injuries and assurance of compensation to victims. Arguably, though perhaps more tenuously, it is possible that allowing liability would more equitably spread the losses caused by the enterprise of shuttling customers in private cars.
Uber singles out the allegations against driver Aiello in particular, arguing that plaintiffs have failed to allege that Aiello was using the Uber App at the time that he assaulted Doe 2 and therefore that he can’t have been acting within the scope of employment. The Amended Complaint states that Doe 2’s friend used the Uber App to arrange the initial pick-up from Aiello to a bar but is silent as to whether the App was used to summon Aiello at the end of the night. The Amended Complaint alleges that someone in the group asked Aiello at the end of the initial car ride whether he would agree to pick them up later. Plaintiffs also allege that Doe 2 got back into Aiello’s car at the end of the night, after he dropped off her friend, “still believing that Aiello was acting in his capacity as an Uber driver….”
It is no longer a principle under California law that an employer may be vicariously liable for an employee’s assault only when the assault was committed to further the interests of the employer. The same principles regarding prevention of future injuries, assurance of compensation to victims, and equitably spreading the losses caused by Uber’s business model apply with regard to Aiello. A finder of fact could determine that Aiello was acting within the scope of his employment where he was summoned using the Uber App, even if rides were offered and received later that night without the use of the App. Taking the allegations in the light most favorable to plaintiffs, as is required at this stage of the case, it is plausible that the rides Doe 2 took at the end of the night came about only because of Aiello’s affiliation with Uber.
In sum, the Court cannot determine—as Uber effectively argues—that as a matter of law sexual assault by Uber drivers is always outside the scope of employment, if the drivers are in fact ultimately found to be employees. The California Supreme Court has left this question open. Like a police officer who rapes a detained woman, an employee who throws a hammer at a fellow worker in a fit of irritation, or an asylum officer who abuses his role to corner female immigrants and molest them, sexual assault by an Uber driver may be incidental to the operation of its business. At the very least, the pleadings present a close enough call that the Court finds no reason to deviate from the ordinary rule that “the determination whether an employee has acted within the scope of employment presents a question of fact….” For the purpose of surviving a motion to dismiss, plaintiffs have plausibly alleged that drivers Dakiri and Aiello were acting within the scope of employment when they assaulted plaintiffs.
CRITICAL THINKING:
What do you think is the distinction between the Mary M. and Lisa M. cases which led to opposite rulings?
ETHICAL DECISION MAKING:
When the judge mentions the “underlying policy goals” of respondeat superior, which shareholder and ethical values are being considered?