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Uber Might Be Liable for Rape by Man Posing As Authorized Driver—Ninth Circuit
Majority of Three-Judge Panel Won’t Apply Contrary State Court of Appeal Opinion, Saying It Contravenes Utterances of California Supreme Court; Graber Dissents
By a MetNews Staff Writer
A woman who was raped by a man posing as an Uber driver has stated a cause of action for negligence against Uber, the Ninth U.S. Circuit Court of Appeals has held in a 2-1 opinion, with the majority declaring that a contrary decision by this district’s Court of Appeal must be disregarded because the California Supreme Court would not be apt to adopt its reasoning.
Circuit Judge Michelle T. Friedland and Senior Circuit Judge Richard Paez signed the memorandum opinion, filed Thursday. It affirms the dismissal by District Court Judge Jacqueline Scott Corley of the Northern District of California of causes of action brought by “Jane Doe” against Uber based on an ostensible agency theory but reverses the summary judgment the judge granted on a negligence claim.
Senior Circuit Judge Susan P. Graber agreed that there was no ostensible agency but dissented as to the viability of the negligence claim, saying that she would follow the determination by Div. One of this district’s Court of Appeal in its June 1, 2022 decision in Jane Doe I v. Uber Technologies, Inc., authored by Presiding Justice Frances Rothschild.
Persons desiring a ride utilize an app on their cellphones to contact Uber, which determines the location of the user via GPS and contacts an authorized driver in the area, providing the rider with the driver’s name, photograph, and license plate number, Rothschild explained. She noted that persons posing as authorized drivers sometimes pull up and pick up the passenger—which occurred in the cases of three woman, each raped in separate occurrences and who jointly sued.
Rejecting their appeal from a judgment of dismissal by Los Angeles Superior Court Judge Mark H. Epstein, the presiding justice wrote:
“On the facts alleged, the Uber entities were not in a special relationship with the Jane Does that would give rise to a duty to protect the Jane Does against third party assaults, or to warn them about the same. The complaint thus did not allege actionable nonfeasance. Nor does the complaint allege actionable misfeasance, because the Uber entities’ alleged actions did not create the risk that criminals would take advantage of the existence of the Uber app to abduct and rape women trying to use it. Although it is foreseeable that third parties could abuse the platform in this way, such crime must be a ‘necessary component’ of the Uber app or the Uber entities’ actions in order for the Uber entities to be held liable, absent a special relationship between the parties.”
Rothschild quoted the California Supreme Court as saying in its 2021 opinion in Brown v. USA Taekwondo that courts in the state “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 nor sits in a relation to the parties that creates an affirmative duty to protect the plaintiff from harm.” She also pointed to the state high court’s 2005 pronouncement in Delgado v. Trax Bar & Grill that “as a general matter, there is no duty to act to protect others from the conduct of third parties.”
Ninth Circuit Opinion
Friedland and Paez expressed their conviction that the California Supreme Court—which declined to answer the question certified to it as to the existence of duty on the part of Uber—“would hold, on the undisputed facts here, that Uber owes its app users a duty to exercise reasonable care regarding their safety.”
Noting that decisions of intermediate appellate courts are not binding on the Ninth Circuit, they wrote:
“In this case, there is ‘convincing evidence’ that the California Supreme Court would not follow Jane Doe No. 1. Specifically, we conclude that Jane Doe No. 1’s ‘necessary component’ test is irreconcilable with the California Supreme Court’s own pronouncements, most recently its decision in Kuciemba v. Victory Woodworks, Inc….”
The decision in that case was in response to questions certified to it by the Ninth Circuit. The plaintiff was a woman who was infected with the COVID-19 virus by her husband who was exposed to it at his worksite allegedly owing to unsafe conditions there.
Justice Carol Corrigan wrote for a unanimous court in declaring that the employer, Victory Woodworks, did have a duty to its employee’s wife.
“Here, plaintiffs have alleged that Victory created a risk of harm by violating a county health order designed to limit the spread of COVID-19,” she noted, saying that the “allegations raise a claim that Victory violated its obligation” as spelled out in the court’s 2001 decision in Lugtu v. California Highway Patrol. There, then-Chief Justice Ronald George said:
“Under general negligence principles, of course, a person ordinarily is obligated to exercise due care in his or her own actions so as to not to create an unreasonable risk of injury to others, and this legal duty generally is owed to the class of persons who it is reasonably foreseeable may be injured as the result of the actor’s conduct.”
In Thursday’s Ninth Circuit opinion, Friedland and Paez wrote:
“This analysis plainly conflicts with the “necessary component” test applied in Jane Doe No. 1—indeed, applying the “necessary component” test would have precluded the outcome in Kuciemba and other state court decisions.”
Graber’s Partial Dissent
Graber protested:
“Our precedents emphasize the importance of following an intermediate appellate state court’s decision where, as here, the state supreme court declines to review that decision….
“Furthermore, our precedents suggest that we must follow the holding or result of a state court case even if we disagree with its internal reasoning….
“Logic points in the same direction. Suppose that the California Court of Appeal definitively construed an ambiguous state statute but provided no reasoning, and that the California Supreme Court denied review without comment. Despite the lack of reasoning, we would be obligated to follow the holding of the California Court of Appeal in that hypothetical case, unless convinced by persuasive data that the California Supreme Court would reverse. That is true even if we thought there was a better reading of the ambiguous statute. Similarly, imperfect reasoning is not, without more, a ground for refusing to apply a holding of the California Court of Appeal.”
Two Examinations
She went on to comment:
“[T]he California Supreme Court already denied direct review and considered arguments on the merits of Jane Doe No. 1 before declining our request for certification. The California Supreme Court denied the petition to review Jane Doe No. 1 and then rebuffed our request for certification, despite our pointing out potential flaws in Jane Doe No. l’s reasoning and laying out a path for possible reversal. Where, as here, the state supreme court refuses review not once, but twice, the weight of its refusal—and the already heightened importance of adhering to existing state appellate court precedent—increases commensurately.”
The case is Doe v. Uber Technologies, Inc., 22-16562.
Plaintiff Jane Doe was raped—according to a recitation by the District Court—on Aug. 18, 2018, by Brandon Rio Sherman, who was formerly an Uber driver. A jury in a state court was deadlocked on the charge of rape but him of kidnapping, strangulation, and witness intimidation.
San Mateo Superior Court Judge Jeffrey R. Finigan sentenced Sherman to 11 years in prison. The convictions were affirmed on Jan. 12, 2023 by Div. Four of the First District Court of Appeal but the sentence was vacated, with a remand, in light of a recent statutory change.
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