Uber Isn’t Liable for Rapes Committed By Fake Drivers–Doe 1 v. Uber

Rapists pretended to be Uber drivers, picked up women under false pretenses, and raped them. As the court summarizes, “Jane Does seek to hold Uber liable for failing to warn them about or implement other measures to protect them against rapists employing the fake Uber scheme in the portions of West Hollywood and Los Angeles where the Uber entities knew rapists had repeatedly implemented the scheme.”

The question is whether Uber had a special relationship with the passengers sufficient to create a duty to protect them.

Sometimes common carriers have such a special relationship, but this didn’t apply to Uber because “when the Jane Does were waiting for their respective summoned Uber drivers, the Uber entities had no control over the Jane Does’ movements, nor over the environment in which the Jane Does were waiting.” Also, any duty may not extend to passengers waiting for the common carrier.

There wasn’t a special relationship arising from Uber’s contract because it did not expressly reference any such relationship. The plaintiffs pointed to some language on Uber’s website about safety, but the court says that was puffery, not a contractual promise.

The plaintiffs argued that Uber had a duty due to its malfeasance, but the court says that Uber engaged in nonfeasance:

The fake Uber scheme may be a foreseeable result of the Uber business model, and the Jane Does’ assailants may not have been able to as easily commit their crimes against the Jane Does, were it not for the Uber app and the Uber business model. But these connections cannot establish that the harm the Jane Does suffered is a “necessary component” of the Uber entities’ actions. “The violence that harmed [the Jane Does]”—abduction and rape—“[is] not ‘a necessary component’ of” the Uber business model. Nor does such harm become a necessary component of the Uber business model because the Uber entities marketed the Uber app as safe to use, refused to cooperate with sexual assault investigations, or concealed sexual assaults related to the use of the app. Even accepting such allegations as true, the Uber entities still are not alleged to have “[taken] . . . action to stimulate the criminal conduct”, as was the case in Weirum, where defendants encouraged plaintiffs to drive as quickly as possible to the designated location. To the contrary, like the defendants in Sakiyama, the Uber entities made efforts to prevent the type of conduct that harmed the plaintiffs—namely, they included matching system features in the Uber app that, if utilized, can thwart efforts like the fake Uber scheme. The conduct based on which the Jane Does seek to impose liability thus does not constitute misfeasance that can give rise to a duty to protect.

The court distinguishes a contrary result in federal court (Doe v. Uber Technologies, Inc., 2020 WL 2097599 (N.D. Cal. May 1, 2020)): “To the extent the federal Uber action rests on the same alleged conduct presented in the SAC, we disagree that such actions “[made] the plaintiff’s position worse” or created the risk at issue in the manner necessary to establish a duty to protect under California law.” The appeals court is publishing this opinion, so it’s a binding interpretation of California law. Given that the federal case is interpreting California law, this opinion ordinarily would supersede the federal court’s interpretation.

This case reminded me of the Doe v. Internet Brands case, where the ModelMayhem website allegedly knew that rapists were preying on its members and didn’t adequately warn them. That lawsuit eventually failed because ModelMayhem lacked a special relationship with its users. Here, Uber’s connection to the rapists was even more attenuated; they weren’t communicating through the Uber app, they were simply showing up at common Uber pickup spots. While I’m sympathetic to the argument that Uber should have warned its users about this risk, it bears reiterating that Uber does a lot to ensure passengers can validate their assigned drivers. Also, Uber may “know” about hundreds or thousands of actual, purported, or rumored threats to its users, and if it tried to disclose all of them, users would drown in a sea of warnings that would make all of them functionally invisible.

(An obvious point: Section 230 was irrelevant to this lawsuit because the rapists never communicated anything to the victims via the app).

Case Citation:  Jane Doe No. 1 v. Uber Technologies, Inc., B310131 (Cal. App. Ct. June 1, 2022)