Liability For Third Party Criminal Conduct – California Court Dismisses Claim Against Uber For Assaults By Individuals Pretending To Be Uber Employees
By Tyler M. Costanzo
In Doe v. Uber Technologies, Inc., et al., 2022 Cal. App. LEXIS 477, California’s Second Appellate District analyzes liability for third-party criminal action; specifically, claims against Uber for sexual assault incidents perpetrated by individuals that misrepresented to victims that they were Uber drivers. In upholding the trial court’s dismissal, the appellate court solidified existing limits of liability for third party criminal conduct.
Plaintiffs Jane Does 1, 2, and 3 (collectively, “Plaintiffs”) were three women who were abducted and sexually assaulted by assailants posing as authorized Uber drivers. In fact, the assailants were not affiliated with Uber, but had obtained Uber decals for their vehicles from Uber’s website, which has a “print at home” feature where anyone can print out the identifying emblem to affix to their vehicle. It was undisputed that Uber does not attempt to monitor the use or distribution of decals and does not receive returned decals from drivers who have deactivated for any reason. The three Plaintiffs were each abducted and assaulted between June of 2017 and February of 2018, and two of the Plaintiffs did not attempt to verify the identity of the driver before entering the vehicle. The third noted to the driver that the license plate did not match, but the driver convinced her that this was a mistake. Plaintiffs complained that Uber’s business model created the risk that criminals could employ this scheme, and that Uber then failed to take measures to protect the public from such conduct.
Plaintiffs further contended that Uber was put on notice of this type of scheme as early as November of 2014 based on reports throughout North America; particularly, there were several complaints as early as 2016 in the Los Angeles area.
The Los Angeles trial court dismissed Plaintiffs’ case at the pleading stage following a successful demurrer by Uber, ruling that there was no special relationship between Plaintiffs and Uber giving rise to a duty to protect Plaintiffs from such assaults, or to warn of the danger of them. Plaintiffs appealed to the Second Appellate District, which affirmed the trial court’s dismissal.
California courts have “uniformly held” that a defendant “owes no legal duty to the plaintiff” if the defendant has neither “performed an act that increases the risk of injury to the plaintiff or sits in a relation to the parties that creates an affirmative duty to protect the plaintiff from harm.” Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 216. Thus, as a general matter, there is “no duty to act to protect others from the conduct of third parties.” Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235. Courts consider whether a special relationship applies to provide an exception to this rule and, if so, then considers whether relevant policy considerations limit that duty.
Here, the Court found that there was no special relationship between Uber and Plaintiffs to impose an affirmative duty to act. Plaintiffs argued that they had been “accepted as passengers by Uber” at the time of their abductions, and therefore a common carrier/passenger special relationship existed. The Court rejected this argument, noting that while Plaintiffs were waiting for their respective drivers, Uber had no control over Plaintiffs’ movements or their surroundings.
Plaintiffs also argued that there was a contractual relationship between them and Uber giving rise to a duty to protect. The Court rejected this argument, noting both that the contractual agreement does not contain any promise to protect and that a statement on Uber’s website (“[s]afe pickups … you stay safe and comfortable wherever you are until your driver arrives”) does not create an implied contractual agreement to protect customers while they wait for their drivers.
The Court also found that Uber’s conduct did not constitute actionable misfeasance or nonfeasance, which permit liability even absent a special relationship when a defendant has affirmatively “created a peril” that foreseeably leads to the plaintiff’s harm. Williams v. State of California (1983) 34 Cal.3d 18, 23. Courts have clarified that misfeasance/nonfeasance require that defendant urge a third party to act in an inherently dangerous manner. Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 408.
Plaintiffs allege that Uber actively concealed this “fake Uber” scheme and therefore its conduct constituted misfeasance/nonfeasance. The Court held that Uber’s conduct did not create an unreasonable risk of harm constituting misfeasance or nonfeasance because the third-party conduct of abduction and assault was not a “necessary component” of Uber’s business model. Melton v. Boustred (2010) 183 Cal.App.4th 521, 534. The Court clarified that while the “fake Uber” scheme may have been a foreseeable result of the Uber business model, that does not establish that Plaintiffs’ abductions and assaults were a “necessary component” of its business. Uber was not alleged to have taken affirmative action to stimulate the criminal conduct. In fact, the Court noted that Uber made efforts to prevent such occurrences by including matching system features in the Uber app (i.e., including assigned driver names, photographs, and identifying vehicle information).
Learning Points: Doe v. Uber further solidifies existing limits of liability for third party criminal conduct under California law. The defendant rideshare service could not be found to have a special relationship with plaintiff passengers on the basis of a common carrier/passenger relationship because that relationship extends only to persons who are current or recent passengers, or are waiting in a location controlled by the defendant, which was not the case here. There was also no implied contractual relationship created by statements on Uber’s website. Finally, the Court provided guidance on the limits of misfeasance and nonfeasance under California law, confirming that while the so-called “fake Uber” scheme may have been a foreseeable result of Uber’s business model, the claim was defeated by the fact that Uber was not alleged to have taken any affirmative steps to stimulate the criminal conduct, nor was it a necessary component of Uber’s business model. Thus, we can anticipate that both rideshare companies and businesses in general will use this ruling to argue that they cannot be held liable for third party criminal activity under the argument that they did not engage in conduct to “stimulate” the activity, nor is such activity a “necessary component” of their businesses.