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It is no longer a principle under California law that an employer may be vicariously liable for an employee's assault only when the assault was committed to further the interests of the employer. Lisa M., 12 Cal. 4th at 297 n. 3
Since 2010, Uber has operated as a "transportation network company." Individuals download Uber's smartphone application and then use the "App" to make a transportation request. "They are then matched with an Uber driver who picks them up and drives them to a destination. App users must pay for the ride through the App with a credit card. Uber pays the driver a share of the fare collected, and retains the remainder." Uber solicits and retains non-professional drivers to provide the car rides that customers order through the Uber App. One who wishes to drive for Uber applies online and uploads photos of a driver's license, vehicle registration, and proof of insurance. Uber then performs a background check through a third party company. This check runs the driver's social security number through a database, capturing information dating back seven years. Once Uber approves a driver, that driver is available to the public to provide transportation services through the App. Neither drivers nor riders pay a fee to download the Uber App. "Uber's sole source of revenue is from charges to riders for trips taken." Plaintiffs Jane Doe 1 and Jane Doe 2 bring this tort suit against Uber Technologies, Inc. ("Uber") for sexual assaults that plaintiffs alleged they suffered at the hands of Uber drivers. Uber moved to dismiss the complaint. In their Amended Complaint, plaintiffs bring six claims for relief: (1) negligence and negligent hiring, supervision, and retention; (2) fraud; (3) battery; (4) assault; (5) false imprisonment; and (6) intentional infliction of emotional distress. Plaintiffs bring claims 3 through 6 against Uber under a theory of respondeat superior. Uber moved to dismiss the Amended Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Uber argued that plaintiffs have failed to state a claim for relief as to all six of their claims.
Should Uber’s motion to dismiss claims brought under a respondeat superior theory be granted?
The court found that, taking the allegations in the Amended Complaint as true, plaintiffs have alleged sufficient facts that an employment relationship may plausibly exist. Plaintiffs have alleged that Uber sets fare prices without driver input and that drivers may not negotiate fares. If a driver takes a circuitous route, Uber may modify the charges to the customer. Uber retains control over customer contact information. Uber's business model depends upon having a large pool of non-professional drivers. There are no apparent specialized skills needed to drive for Uber. Uber retains the right to terminate drivers at will. Uber also controls various aspects of the manner and means by which drivers may offer rides through the Uber App. Among these, plaintiffs have alleged that Uber requires drivers to accept all ride requests when logged into the App or face potential discipline. With respect to sexual misconduct by an employee, the California Supreme Court has not declared, as Uber would have it, that such acts always bar vicarious liability on the part of the employer. In this case, which is only at the pleading stage, foreseeability and policy rationales weigh in favor of allowing the complaint to move forward on the scope of employment question. It is no longer a principle under California law that an employer may be vicariously liable for an employee's assault only when the assault was committed to further the interests of the employer. The court cannot determine -- as Uber effectively argues -- that as a matter of law sexual assault by Uber drivers is always outside the scope of employment, if the drivers are in fact ultimately found to be employees. The California Supreme Court has left this question open. At the very least, the pleadings present a close enough call that the Court finds no reason to deviate from the ordinary rule that "the determination whether an employee has acted within the scope of employment presents a question of fact . . . ." For the purpose of surviving a motion to dismiss, plaintiffs have plausibly alleged that drivers Dakiri and Aiello were acting within the scope of employment when they assaulted plaintiffs.