By: Emily O’Toole

Ride sharing services are businesses in high demand.  Uber is a worldwide ridesharing company that has more than 8 million riders and more than 1 million registered drivers.   Uber provides a variety of services.  One popular rideshare service is UberX.  This service has a lower fare than Uber Taxi or Uber Black Car because individual Uber drivers use their own personal, unmarked vehicles to pick up passengers.  Running a business that requires passengers to get into the unmarked personal vehicles of strangers comes with certain legal concerns.  One legal concern is the possible tort liability of an employer through respondent superior.  Generally, employers are liable for the actions of their employees, through respondent superior, if the employees hurt others within the scopes of their job duties.  A way for a business like Uber to avoid tort liability through respondent superior is through the use of independent contractors .  Independent contractors are not considered employees, and thus they are considered solely liable for any harm they may cause on the job because they themselves are solely responsible for deciding how a job is completed.

Hiring independent contractors, however, is not an absolute protection from tort liability for their actions.  One way an employer can be responsible for the harmful acts of independent contractors, is if the independent contractors hired are incompetent.  Therefore, if Uber were to hire an incompetent independent contractor/driver, it could be liable for the acts of the independent contractor/driver.  Thus, Uber has taken several actions to protect itself from hiring incompetent independent contractors.  Uber states that it reviews all the driving records of applicants and submits drivers to criminal background checks.  This background check is an effort to ensure that the drivers are qualified and have no record that might indicate a higher likelihood to commit crimes of violence against passengers.  It remains to be seen whether or not these steps are enough to protect Uber from tort liability through respondent superior in every possible case .  However, if Uber’s hiring practices do generally protect it from liability for the acts of a driver, then this may mean that Uber drivers should think twice before picking up Uberpool passengers.

Uber brought a new Uberpool service to Boston this past August.   Uberpool may appeal to frugal Bostonians because it has an even cheaper base fare than an UberX.  Uberpool is a carpool system.  One rider will request an Uberpool car, which is also the personal vehicle of the Uber driver, to pick him/her up.  En route to that rider’s destination, the Uber driver may be alerted to other potential Uberpool customers.  The Uberpool driver can then pick up a second passenger traveling in a similar direction to first passenger.  This means that an Uber driver will now have two complete strangers in the back of his personal vehicle.  The two riders have no control over whether or not the other passenger is picked up by the Uber driver.  If a passenger requests an Uberpool, then he or she just has to accept the decision of the driver.

So now, imagine the potential scenario where one Uber passenger intentionally harms another in the vehicle or forces the other passenger out of the vehicle with the intent to harm the person once outside of the vehicle.  The Uber driver may be unaware of the threat or be unable to stop the harm before it occurs.  If one Uberpool passenger harms another passenger, it is possible that this passenger may want to sue the Uber driver for picking up the dangerous person.  A passenger may not have legal grounds in every scenario to sue the driver.  If the passenger does have legal standing, however, this is a whole new type of vulnerability for the driver. With an UberX fare, drivers are depending on their own abilities to drive, as well as the knowledge that they will not intentionally harm their passengers, to avoid any liability.  There is only one passenger, or passengers that know each other, so the Uber driver only has to worry about his own actions.

In an Uberpool, the possible actions of one passenger against another may be too great a risk to bear as an independent contractor.  If Uber proves to have hired a competent independent contractor as an Uberpool driver, then the driver is alone to bear the possible financial burden of any harm one passenger causes another.  The passenger will have no claim against Uber, and thus a driver may have a large judgment entered against him after a lawsuit.  The liability risk for Uberpool drivers, as independent contractors, just seems too high to take.  There are too many variables outside of the driver’s control. If I were an Uber driver, I would certainly think twice about picking up any Uberpool passengers.

 

Bio:  Emily is a 3L at Suffolk University Law School.  She is the Editor-in-Chief of the Journal of High Technology Law.  She is also currently working as a Rule 3:03 Student Attorney in the Suffolk Defenders Clinic.  She enjoys free time… where she can find it.