On Monday Uber was hit with the first wrongful death lawsuit ever levied against a Transportation Networking Company (TNC). In case it wasn’t clear from the flood of national media coverage (including here on Pando), that’s a Big Deal.
Reporters across a variety of sectors — tech, local news, law, transportation, will follow the lawsuit closely both because of the emotional reasons — Sophia Liu, the 6-year-old girl hit and killed by an Uber driver — but also because of what it will mean for the regulation of “disruptive” transport companies.
Uber, as is its wont, was quick to distance itself from the driver and the incident. The company’s argument: that the driver did not have an Uber passenger in the car and therefore “was not providing services on the Uber system during the time of the accident.” The implication being that Uber is only responsible for what its drivers do while they have a passenger on board — not while they’re waiting for their next job.
The death of a child is always going to attract outsized media attention, and this case is likely to be the first time the public will really start considering Uber’s claims of near-zero liability for the behavior of its drivers.
“We’re in uncharted waters here with Uber,” Jordanna Thigpen, a trial lawyer in Los Angeles and the former Executive Director of the San Francisco Taxi Commission, says. “Society is evolving, these apps are evolving, and the court cases are catching up.”
To the courts, the fact that Uber’s drivers are independent contractors and not employees protects the company from some liability but not all. It would be really hard for someone to win a case against Uber for “vicarious liability,” for example. In the past, companies are usually only vicariously liable when they have full-time employees who, therefore, represent the business itself. That relationship makes the company liable by proxy for said employees’ actions.
But in terms of hiring negligence, wrongful death, or causing emotional distress, the answers are less clear. Companies can be responsible for hiring negligence even when the drivers are independent contractors, if it can be proved said company didn’t do its due diligence to vet the drivers it partners with. Even though the employees are independent contractors, the law would look at the fact that Uber vets drivers, dictates their appearance and behavior, and takes a percentage cut of each ride. Those factors make it look less like an independent platform and more like an employer.
University of California Hastings law school professor Lawrence Levine explained it like this:
Every state has statute telling you can sue for wrongful death. If your parent or child gets killed, you have a right to sue them. It’s a parent suing for their loss of their daughter, suing for the loss of the comfort and companionship. It’s the name of what they’re asking for, it’s the damages they’re asking for, but it doesn’t affect liability. It’s the same proof required to prove negligent hiring. Wrongful death is the same negligent suit.
A company can also be found responsible for causing wrongful death and emotional distress even if the party that committed the crime is a completely independent third party.
Take for example the case of WEIRUM et al. vs. RKO GENERAL, INC. RKO General owned Radio Station KHJ in Los Angeles. The station sponsored a contest where one of its DJs drove around town to different locations, announcing it on the air. The first teenager to “find” him would be awarded a prize.
The contest resulted in teens recklessly driving on the roads, racing across different parts of the city, and one of them eventually forced another car off a highway, killing the person driving it. The dead man’s family sued the radio station and won. Even though the man was killed by a third party that was independent to the radio station, the radio station was still held responsible.
The court determined, “It is of no consequence that the harm to decedent was inflicted by third parties acting negligently…The issue here is civil accountability for the foreseeable results of a broadcast which created an undue risk of harm to decedent.”
To an outside observer that seems absurd. How can the radio station be held liable for the actions of completely independent third parties? But to the courts, the inherent terms of the contest encouraged, or maybe even required reckless driving on the part of the teenagers in order to win. The potential harm could have been anticipated, and the risks were not worth the reward of entertaining radio listeners. Therefore the station was, by proxy, a responsible party.
So how could this apply to Uber? Well, prosecutors may try to prove that driving quickly and occasionally getting distracted via a phone app is an inherent part of the Uber job, one that bears the risk of accidents that could have been anticipated.
“They have an incentive to drive fast because then they can get more fares,” Thigpen says, “That results in more money for the driver and for Uber.” With this argument, Liu’s family’s lawyer may have a case that Uber is responsible for her death, even though the driver is an independent contractor and didn’t have a passenger in the car at the time.
It’s possible Uber will attempt to avoid everything by settling with the Liu family out of court to avoid setting legal precedent which will bind them for years to come.
Whatever Uber’s ultimate approach, the debate around their liability to passengers and other members of the public is not going away.
[Illustration by Hallie Bateman for Pando]