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Uber Assault Suits Mount as It Tries to Calm Safety Fears (2)

July 29, 2021, 9:16 AM; Updated: July 30, 2021, 7:39 PM

A San Francisco woman who ordered an Uber to get home from a party says her driver instead brought her to an empty beach and assaulted her. Two years later, the man was still active on the platform.

A woman in Colorado says she was attacked in an alley behind a bar by her driver, who told her she asked for it because of what she was wearing. And a woman in Georgia claims she was raped and beaten by her driver, who then stalked her for weeks to keep her from reporting the assault.

They are among more than a hundred women, each identified only as Jane Doe, who since May have filed suit against Uber Technologies Inc. in California state court, represented by a handful of plaintiffs’ firms that after years of settling say they want to hold the company liable for these alleged attacks. They plan to continue to file claims.

“We are anxious to get them to trial as quickly as we can,” said Michael Bomberger, a partner with Estey & Bomberger LLP, which has another 250 cases pending against Uber and its chief competitor, Lyft Inc. “Getting a verdict will be the only way to shine a light on the way these companies do business.”

Uber and Lyft have faced persistent claims for years alleging that drivers have sexually assaulted passengers, but the lawsuits have largely ended in voluntary dismissals or settlements, according to a Bloomberg Law review of federal and state court dockets. The companies have denied liability in these cases.

Companies that try to reach a settlement rather than face a jury usually have conducted a cost-benefit analysis, said Tennessee attorney Garrett Asher, whose firm Surber, Asher, Surber & Moushon PLLC has represented taxi companies in similar litigation.

“In most of these cases, the victim is sympathetic,” he said. “And if you’re sitting on a jury, and you hear what happened, you’re going to want to give this person a lot of money.”

The current litigation wave hits as Uber reached a settlement this month with the California Public Utilities Commission, which had demanded details from the company that would identify 3,000 people who said they were assaulted in 2018, a figure published in a 2019 company safety report. The agreement doesn’t require those identity disclosures, but Uber must pay a $150,000 fine, $5 million to the California Victim Compensation Board, and $4 million toward creating industry-wide safety standards and education.

The lawsuits also come after the gig companies pushed a $200 million ballot initiative to cement drivers’ status as independent contractors in the state. Lawsuits have been filed around the country, and at least one is scheduled for trial in October, but the latest round in California could be consolidated before a state judge, the attorneys said.

If a court finds Uber and Lyft liable for the actions of their drivers, it could put them on the hook for damages and require changes to their business operations, like requiring cars be equipped with cameras, audio equipment, and an emergency button similar to those used by New York taxis.

“Uber’s lawyers have thought about this, they recognize the risk but fear certain changes will open them to additional liability,” said Alexandrea Ravenelle, an assistant professor at the University of North Carolina at Chapel Hill. “The platforms can do a lot more.”

Company Response

Uber says it has been working collaboratively with plaintiffs’ counsel for more than a year and attempting to be transparent and bolster safety measures. The company also plans to continue to issue reports on assaults and accidents related to the platform, and work with advocacy groups to implement best practices, including a hotline and emergency button option for rides.

It says most of the latest claims don’t include enough information to link them to the Uber platform, that some of the drivers had been banned from the platform and weren’t Uber contractors at the time of the alleged incidents, and that some allegations were against drivers who had passed criminal background checks.

“Sexual assault is a devastating crime and although no industry is immune from these issues, we remain steadfast in our commitment to support victims and help stop sexual violence by collaborating with experts, pioneering safety tech solutions, and setting the standard on transparency and accountability,” Uber said in a statement.

Lyft didn’t respond to a request for comment on the latest lawsuits, but the company previously told Bloomberg Law that “work on safety is never done, and we will continue to work towards our goal of making Lyft the safest form of transportation for our community.”

A Stranger’s Car

Attorneys behind the sexual assault complaints are seeking complex coordination of the already filed suits and say they plan to file hundreds more in the hopes they all will be consolidated before a single judge.

The state cases are being filed in California but come from women around the country who report hailing a ride from Uber or Lyft and being harassed, sexually assaulted, raped, or beaten.

“So many aren’t being prosecuted because of the lack of evidence,” Bomberger said. “Both of these companies are acutely aware that if rides were recorded, the public would realize how dangerous it could be to ride in one of these vehicles.”

Drivers have also reported assaults. The business model itself lends itself to a dangerous situation, said Ravenelle.

“What we see with the so-called sharing economy is that from the early days they advertised bringing strangers together,” Ravenelle said. “Not having a middleman blurs the boundaries. It’s still a stranger getting into a stranger’s car.”

Timing on the cases is uncertain, but the coordination strategy is one that several of the firms are already pursuing in claims against Lyft. Last year, San Francisco-based Levin Simes Abrams LLP, which filed the recent petition for coordination of the Uber cases, won approval for coordination of similar assault cases against Lyft.

Bomberger’s firm is in discovery for many of those consolidated cases, and noted it could take years for the latest batch of suits against Uber to get to a jury. The coordinated Lyft cases haven’t made it to a jury yet, though bellwether trials are scheduled for early next year. A hearing on the petition to consolidate the recent Uber cases hasn’t yet been set.

If similar approval is granted for suits against Uber, it would be the only consolidated group of cases against it in the country, said Levin Simes, which has filed nearly 100 cases against Uber in San Francisco. And any future cases filed in state court around California would be included, the firm said.

The Negligence Claim

Negligence claims are the cornerstone of the new cases, said Laurel Simes of Levin Simes, which is bringing the majority of the new claims against Uber.

The cases contend Uber was negligent because it’s been aware of the danger of sexual assaults committed by drivers, but hasn’t taken reasonable steps to prevent them from occurring. And it tells the public it offers safe rides, while knowingly putting passengers in harm’s way.

They also claim negligent hiring and supervision, and “common carrier” negligence—saying Uber is a transportation company under California law and therefore owes a heightened duty of care to passengers.

Some complaints dive into the company’s political actions, as it actively lobbies against laws that would require more thorough background checks and supervision of drivers. But negligence is tough to prove under California law, which would require a plaintiff to show that a ride-hail company’s breach of a duty to passengers caused them harm.

From a defense perspective, negligence claims can be scary for a company if they survive pretrial motions, Asher said. “Plaintiffs tend to allege various theories—that the company had bad policies, or didn’t follow their own policies, or negligently screened a certain driver, in the hopes of surviving to discovery,” he said.

For larger companies, the chances that they didn’t follow all of their procedures exactly are higher. “You never get anything 100% right in large bureaucracies,” he said.

And if plaintiffs can find anything wrong with company procedure, they’ve got a hook for a negligence claim, even if every other cause of action is dismissed, Asher said.

Several of the new cases also include an as-yet-untried claim of strict product liability: that Uber’s “product”—its app-based platform that connects drivers to passengers—fails to keep passengers safe.

“Whether Uber’s platform is a product or not, and whether other causes of action will hold up under judicial scrutiny, we don’t know that yet,” Simes said. “This is a very new type of litigation, so we’re trying to make sure that we cover all the bases and aren’t leaving any potential claim for liability off the table.”

While product liability claims as applied to the gig economy are relatively untested, Uber has faced such claims in cases not involving alleged sexual assault, including in the case of a driver running a red light in San Francisco and killing a 6-year-old in the crosswalk.

That case challenged the manner in which drivers are required to use the app while on the roads, but ultimately settled privately, without taking the product liability question to a jury.

‘Pervasive Throughout Our Society’

Uber has partnered with RAINN, a national anti-sexual violence organization, which said it is difficult to determine if there has been an increase in assaults of those using the ride-hailing platforms.

“The unfortunate reality is that sexual violence is pervasive throughout our society, and no industry is exempt,” said RAINN spokeswoman Erinn Robinson. “All organizations, particularly those who serve large numbers of customers such as ride-share companies, have an obligation to address safety and prevention through policies, reporting, training, and response.”

Robinson said that sexual violence thrives in secrecy, so an important goal is to reduce barriers to reporting.

“The critical work of improving safety measures needs to continue to be prioritized as ride-share moves forward,” she said. “Just one sexual assault is one too many and there is much work still ahead.”

(Adds details on Uber safety efforts. An earlier correction clarified the settlement between the CPUC and Uber.)

To contact the reporters on this story: Maeve Allsup in San Francisco at mallsup@bloomberglaw.com; Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Gregory Henderson at ghenderson@bloombergindustry.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com

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