The Road to Redemption: Holding Rideshare Companies Responsible for Their Role in Trafficking

Introduction

In 2019, Uber published an explosive first-ever U.S. Safety Report. While the rideshare company was lauded for seemingly unprecedented transparency when it came to rider safety, the report was selectively narrow—limited only to traffic fatalities, fatal physical assaults, and sexual assaults connected with the Uber platform. Nowhere in the 84 pages did the rideshare company address any incidents of traffic fatalities, fatal physical assaults, and sexual assaults that occurred after the passenger reached her destination, no matter how negligent or reckless the Uber driver was in putting her in harm’s way.² Similarly missing were any data relating to children—specifically the trafficking or physical and sexual abuse of children.

Although both rideshare companies currently prohibit the transportation of unaccompanied persons under the age of 18, it is the rideshare industry’s worst-kept secret that passengers ride young and ride often. To be sure, many of these rides are booked for benign reasons—parents who are too busy, who are out of town, or who don’t have access to a car often rely on rideshares to transport kids and teens to and from school, soccer tournaments, and Little League baseball games. According to a survey from 2019, 13 percent of parents reported that their children, between the ages of 14 and 17, had used a ridesharing service, either alone or with another teen, and a whopping 31 percent of the parents of 18-year-olds reported the same.³ This trend even led Uber to launch a teen-rider pilot in 2017, offering rides to children aged 13 to 17 through a special “teen platform” in Phoenix, Seattle, and Columbus (this program quickly imploded in on itself for obvious liability concerns).

The true danger lies beyond parents skirting Lyft’s policies to pick Junior up from piano practice—predators use rideshares to prey on, traffic, and harm children, just like N.J., all the time. Rideshare companies unequivocally facilitate tortious and even criminal acts against children every year. Yet antiquated precedent—established long before we understood the full nature of rideshare services—have long since shielded these entities from liability—with most cases never making it anywhere close to the jury.

Courts around the country have begun to break away from this method of scrutiny and paved their own inroads for civil liability. In the pages that follow, I will (1) lay out a primer on the rideshare industry, (2) describe the state of civil liability as it was, and finally (3) explain the evolving state of the law and attempt to inform on what the judiciary should seek to find when determining if a plaintiff gets to have her day in court.

The Evolution of the Rideshare and the Sharing Economy

Lyft and Uber are two very large pieces of what is referred to as the sharing, gig, or on-demand economy. Whatever you call it, the sharing economy, particularly in the transportation sector, relies on the basic equation (1) Person A needs a ride, (2) Person B has a car, and (3) Platform C connects A and B together.

While rideshares are both relatively new companies (Uber officially launched in 2011, followed by Lyft a year later in 2012), the concept of ridesharing is not new. From 1915 to 1916, there was the short-lived and relatively forgotten “Jitney”—a car-sharing phenomenon that was born out of the 1914 recession and the arrival of Ford’s Model T. It died at the hands of bureaucracy and political pressure from powerful railroads and municipal authorities.⁴ More recent still was the ever-sketchy Craigslist “ride board.” Craigslist, which went live in 1996, was the go-to method of ridesharing—with prospective drivers and passengers bartering money or company in exchange for daily commutes and cross-country road trips.

Truly, the first form of ridesharing was hitchhiking, a practice that became popular with soldiers during WWI. Hitchhiking, or “thumbing,” all but disappeared in the 1970s as a result of several highly publicized rapes and murders. While Jitney, Craigslist, and hitchhiking all connect drivers and passengers, just like the modern rideshares, they differ in at least one very crucial way: You pay rideshares to eliminate the stranger danger.

Of all the predecessors to rideshares, Craigslist is the most similar—an online platform where drivers connect with riders. However, Craigslist does not orchestrate matching riders with drivers; it does not revenue share with drivers; it does not track when a ride begins or ends or if it even happens, and—most importantly—it does not vouch for the safety, security, or quality of the ride. Lyft replaced and improved ride boards and casual carpool lines by connecting individuals seeking transportation with individuals willing to provide such transportation in real time, while also adding an unprecedented level of consumer safety, customer service, and service reliability.

Uber’s and Lyft’s Promise of Safety

Rideshares used the promise of safety, service, and reliability to win licenses from regulatory bodies, utility commissions, and legislatures across every state in the country. In Lyft’s application to the Pennsylvania Public Utility Commission in 2014, it argued that while ridesharing was “nothing new,” Lyft could offer what “online marketplaces such as Craigslist” could not: “adding an unprecedented level of consumer safety, customer service, and service reliability.”⁵ Lyft didn’t just promise to be the new Craigslist; it promised to be the “Super-Craigslist”—a ridesharing platform that offered, unlike any of its predecessors, “casual carpooling, commuter pick-up lines, employer and community ride boards.”⁶

This promise made getting into a stranger’s car as ordinary as hailing a taxi. A recent case out of the Supreme Court of Pennsylvania, Lowman v. Unemployment Compensation Board of Review,⁷ explained:

There is comfort in the conclusion Uber controlled and directed [the driver’s] performance of driving-for-hire services. Uber, presenting itself as a transportation network company, invites a passenger without any personal contact with anyone, to request a ride from a driver (who will be a stranger). Vetting, monitoring and supervising the provision of services by its drivers is implicit in Uber’s services.⁸

At this point in the article, you have probably figured out that “vetting, monitoring and supervising” is not present in every rideshare ride. You probably knew this before you even started reading, as stories about driver-on-passenger or passenger-on-driver sexual assaults and physical violence are not uncommon, even if rideshares fail to report them.

Transporting Minors into Harm’s Way

While rideshares do not openly report instances in which drivers unwittingly, negligently, or recklessly deliver children to harm’s way, it happens––a lot.

On April 30, Marlesha Heyward called her five-year-old son Makel Heyward’s school, Springfield Elementary in West Ashley, South Carolina, and notified them that she was running late to pick him up. Moments later, she received a call from the school telling her that a school employee had already put Makel in the back of “someone’s” car. Marlesha had no idea who that “someone” was, and, after calling every family member who could possibly have picked up her child, filed a missing person report with the police thinking that her son had been kidnapped. Unbeknownst to this frantic mother, that “someone” was a Lyft driver who had mistakenly picked up the wrong student from the elementary school—a fact he did not realize until he attempted to drop off Makel at the wrong address.⁹

In June 2019, Nicholas Avery, a registered sex offender, arranged for a Lyft to pick up Jane Doe, a 13-year-old girl he met on social media, and drive her 200 miles from Kansas to Nebraska. Avery paid Lyft $200 for the overnight trip that transported the minor—whom authorities commented “was clearly not 18”—from her grandparents’ home in Topeka to his residence, where he repeatedly raped her over the course of three or four days.¹⁰

In January 2020, two women who were caught in a sting operation attempting to sex traffic two teenage girls admitted to police that over the past four months, they had been trafficking the girls throughout Florida, ordering rideshares to transport the children to customers.¹¹

Rideshares Place Blame on Drivers and on Riders

Each of the preceding stories has one crucial thing in common with N.J.’s: In each instance, Lyft or Uber was the but-for cause of that child’s harm. N.J.’s rapist did not have his own vehicle. N.J. lived over 10 miles away from the motel where she was raped, so she could not have reached him on foot. And it was a Sunday, after midnight—there were no public transportation options available. If Lyft had refused or rejected her ride, she would not have been raped that night. Yet, although these rideshare companies provide the means to these tragic ends, they all too often successfully skirt responsibility by relying on the independent contractor/employee distinction.

What’s in a Name?

The passage of Proposition 22 in California, a ballot measure, allowed rideshares to continue treating their drivers as independent contractors rather than employees in the state.¹² Perhaps you did not hear that these two companies spent over $200 million on a campaign to support the passage of the measure. Nearly all of the criticism surrounding Prop 22 has focused on how this bill allows rideshares to “exempt themselves from providing essential protections and benefits” to their drivers.¹³ However, “independent contractors” versus “employees” is not just about worker’s rights. It also is very much about escaping—or trying to escape—tort liability.

There is much debate, in courts and in academic circles, as to whether or not rideshare employees qualify as independent contractors or employees. This distinction is crucial in the tort context. For example, if Lyft classified all of its drivers as employees, the respondeat superior doctrine would assign liability to Lyft for the employee driver’s tortious conduct.¹⁴ However, if the Lyft drivers were given independent contractor status, the common law as codified in Restatement (Second) of Torts § 409 would leave Lyft without liability for the driver’s misconduct, unless Lyft itself was found to have engaged in a separate tortious act (i.e., negligent hiring, training, and/or supervision).¹⁵

Countless times in the past decade, courts around the country have grappled with this distinction as applied to rideshare context. In Doe v. Uber Technologies, Inc.,¹⁶ two plaintiffs, Jane Doe 1 and Jane Doe 2, brought various negligent and intentional tort-based claims against Uber for separate instances of sexual assault perpetrated by Uber drivers. Uber moved to dismiss the claim in part on the premise that the drivers were independent contractors, not employees, and therefore they could not be held vicariously liable for the driver’s conduct. In determining Uber’s potential liability, the court considered the issue of independent contractors/employees. Although the court found that the plaintiffs sufficiently alleged enough facts to establish an employer/employee relationship between Uber and the drivers, the court underscored the impossibility of retrofitting Uber into existing classifications under tort law—finding that Uber was not conclusively an employer of employees, nor of independent contractors, nor entirely a common carrier, nor strictly a technology company.

In Cunningham v. Lyft, Inc., the Massachusetts district court found that Lyft’s insistence on classifying drivers as independent contractors and not employees was an attempt at “create[ing] a false dichotomy between the administrative and operational aspects of their business.”¹⁷ The court found it was better to throw out the independent contractor/employee distinction altogether, focusing rather on the realities of Lyft’s rideshare business to determine liability or lack thereof: “[a] business cannot alter the substance of its usual course of business merely by careful (or careless) self-labeling in its dealings with contractors, employees, customers, or the public.”¹⁸

The difficulty of answering this independent contractor versus employee quandary is not just something that frustrates the courts; a quick Lexis or Westlaw search will produce thousands of academic articles arguing for a better way to make this determination. Many draw a hard line, arguing in favor of picking one hardline classification and sticking to it. Others belabor the merits of returning to the old classics as a solution: the ABC Test,¹⁹ the IRS Right to Control Test,²⁰ the Economic Realities Test,²¹ and any number of state-specific criteria based on federal regulations, such as the Fair Labor Standards Act of 1938 (FLSA) and the Employee Retirement Income Security Act (ERISA).

Twenty-First Century Problems with Nineteenth Century Solutions

An allegiance to method, the need to pigeonhole a worker as an independent contractor or an employee to ascertain tort liability, is understandable because while ridesharing is a modern phenomenon, the independent contractor distinction is not. The 1889 U.S. Supreme Court case Singer Manufacturing Co. v. Rahn asked if a company was liable for the tortious conduct of a sewing-machine salesman, who, employed under a written contract and paid on commission, used a company-supplied wagon—with his own horse and harness—to make sales.²² The Court’s analysis centered around whether or not the salesman was acting as an employee or an independent contractor when he ran into the plaintiff with his horse and buggy. The almost timeless reliance on this distinction is explained by Yale Professor Roscoe T. Steffen in a 1935 article for the University of Chicago Law Review: The “rationalization [of the independent contractor/employee distinction] in terms of ‘control’ . . . gives principal significance to the notion of fault, in keeping with the supposed basis of liability for torts of negligence. The person most to blame for an injury should pay.”²³

Noting a similar inability experienced by courts almost a century later to define an “independent contractor”—“It is all very confusing”—Steffen explained that this distinction was necessary to combat the trend to hold “employers increasingly [responsible] for the torts of his employees.”²⁴ Steffen makes it clear that the common law reliance on the independent contractor/employee distinction was based fundamentally in a sense of judicial fairness: “The principal having delegated the performance of a certain class of acts to the agent, it is not unjust that he, being the person who has appointed the agent, and who will have the benefits of his efforts if successful, should bear the risk of his exceeding his authority.”²⁵

There are two other points in Steffen’s article that are especially relevant to today’s discussion. First, while the scheme of almost strict liability for the worker’s action made sense when “the employer worked at the elbow of his employee,” the advent of the modern large corporation, typified by hands-off and “absentee ownership,” meant that employer control over the worker’s actions had all but vanished.²⁶ Second, during the turn of the century, the average independent contractor “by and large [was] financially better able to absorb losses . . . than the individual employer himself would be.”²⁷

These points are relevant because they draw a stark contrast to the realities in which rideshares currently operate—a world where, as the Lowman court noted, they exact an acute level of control over every single ride given by drivers; a world where it would be inconceivable to imagine any rideshare driver even having insurance coverage that is comparable to Lyft’s or Uber’s assets.

Why then—if the courts and academics struggle to bootstrap together a viable distinction between rideshare independent contractors and employees; if we acknowledge this determination of liability is antiquated, dated, and based in a reality that no longer exists—do we engage in the exhaustive and, quite frankly, lazy mode of analysis?

The truth is this is not entirely Your Honor’s fault. The rideshares of a century ago—the manufacturers, factory owners, and construction companies—swapped workers’ titles to and from “servant” to “agent” to “independent contractor” to “employee,” depending on what label was most advantageous to either escape tort liability or enforce contractual obligations.²⁸ The same happens now with rideshares entering state markets as “common carriers,” then redefining themselves as “transportation network companies,” or a technology platform, fighting to call drivers independent contractors rather than drivers. When the inevitable happens, a plaintiff brings a case against Uber or Lyft and asks the court to hold the complete opposite, it puts the court in the unenviable position of being asked to decide between two clunky designations. However, this does not need to be the case—as the judiciary can and should break away from this faulty method of determining liability. Judge Benjamin Cardozo, in one of his more prolific lectures, The Nature of the Judicial Process, addressed just this very ‘going against the precedential grain’ quandary. “Some judges seldom get beyond [comparing the case before him with precedents] in any case. The notion of their duty is to match the colors of the case at hand against the colors of many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule.”²⁹ However, Cardozo urged the judiciary, as I urge you now, that “no system of living law can be evolved by such a process,” that “[i]t is when the colors do not match . . . when there is no decisive precedent, that the serious business of the judge begins. He must then fashion law for the litigants before him.”³⁰

If the Shoe Fits, Wear It. But If It Doesn’t Fit, Buy a New Pair of Shoes.

I propose that we throw out the need to focus on the independent contractor/employee distinction altogether. As Judge Cardozo once notably said, “principles that have served their day expire, and new principles are born.”³¹ What I suggest is a hybrid approach grounded in basic negligence principles that achieve fundamental fairness in ascribing liability. The first part of my approach is to scrap the proposition that rideshares have no duty whatsoever to passengers. As the Cunningham court found, “the realities of Lyft’s business . . . encompasses [sic] the transportation of riders.”³² While rideshares argue that they are merely “connecting riders and drivers,” the court argued that the focus should be on “what the business offers its customers.”³³ Rideshares are not simply offering a platform.

A worthy analogy to consider is the movement in common law to hold Amazon responsible for the sale of dangerous products sold through its website.³⁴ While Amazon escaped liability for years as merely a “hands-off” online marketplace, recently courts in California, Texas, Wisconsin, and Pennsylvania have held that Amazon’s possession of injury-causing products in its warehouses, and the shipment of them in boxes covered in the company’s logo, puts Amazon in the liability crosshairs. Contrast this with Craigslist. If a seller were to post the same injury-causing product in the “For Sale” section and sell the product to a buyer who ends up injured as a result, while both examples include a transaction and an injury, only one sale contains an implicit guarantee. When you buy something from a stranger on Craigslist, you are not buying something from Craigslist. You are not entering your credit card information on Craigslist or expecting a shipment from Craigslist in Craigslist packaging. You are aware that you are buying from a stranger with no promises or guarantees from Craigslist. Similar to the rideshare context, when you book a ride with Uber, you are booking a ride with Uber. You are using its application; you are trusting its process; you are selecting a type of service (Uber Share, Uber Black, Uber X); and you are expecting the driver will display an Uber logo and log the ride in the Uber app. In contrast, if you were to connect with a driver on a Craigslist ride board, you have no such expectation—you are getting a ride from a stranger, not an Uber driver.

Once the base-level premise is accepted that rideshares owe a duty, the next step is determining what standard of care is owed. And this standard of care will vary as each set of facts is different, each tortious act unique, and the circumstances upon which the underlying case is brought nuanced. However, I would posit that rideshares have set for themselves some basic parameters for this standard. As noted by the Search court, “Uber, through several forms of media such as its mobile app and its website, represented to customers that it is your private driver, that it subjects its drivers to rigorous screening procedures before hiring them, and that it continues to monitor those drivers after they are hired.”³⁵ Therefore, at a minimum, it makes logical sense to extend Uber’s and Lyft’s liabilities to the promises they make themselves.

Additionally, as noted by the courts, rideshares are in the business of transporting riders; therefore, the fundamental safety and regulatory guidelines that apply to taxicabs, buses, and trains alike should equally apply to these rideshare companies. In a suit against rideshares, a group of plaintiffs argued that both rideshare companies failed to accommodate disabled passengers and/or to properly train drivers in assisting disabled riders in violation of the Americans with Disabilities Act (ADA).³⁶ The court rejected Uber’s argument of the “unworkability of Title III’s application to technology companies that provide platforms for peer-to-peer sharing” and found that Uber is not immune to ADA compliance.

Finally, I suggest a novel approach that, as of the writing of this article, has yet to be applied to rideshares—the concept of inherently dangerous activities. While novel, this idea is not out of bounds, as it does not require the court to openly toss the concept of independent contractors versus employees because it is universally accepted that even employers of independent contractors are still liable for injuries from inherently dangerous activities.³⁷ And I am not suggesting that this standard be applied across the board. However, in the context of a rideshare providing transportation to unaccompanied minors, a violation of societal norms and their own safety guidelines is exactly where the inherently dangerous activity standard should apply. As a preliminary matter, the inherently dangerous activity standard is applied when the employer “should recognize [the activity] as likely to create . . . a peculiar unreasonable risk of physical harm to others unless special precautions are taken.”³⁸

Courts have generally accepted that a heightened, nondelegable duty of care is owed in the transportation of children, finding that a school bus driver’s duty to ensure the safety of its passengers extends beyond the child’s egress on and off the bus; that bus drivers, given the high demands and strict safety requirements that come with transporting children, can be terminated if found to be unfit to meet said standards.³⁹ Moreover, rideshares openly prohibit the transportation of unaccompanied minors because, like the courts above, they acknowledge the inherent safety concern in engaging in such conduct. Lyft’s and Uber’s driver training, in spotting the warning signs of sex trafficking victims, puts the rideshare companies and their drivers on notice of the vulnerability of child passengers and the high bar of care when they willingly take it upon themselves to transport them.

Endnotes

1. The minor victim is referred to by her initials only to protect her privacy.

2. Uber did include instances in which the Uber driver raped the passenger at the destination or assaulted the passenger shortly after the ride concluded.

3. G.L. Freed et al., Are Ride Sharing Services Safe for Teens?, 34 Mott Poll Rep. (C.S. Mott Child.’s Hosp., Univ. of Mich.), no. 1, Apr. 15, 2019, https://mottpoll.org/reports/are-ride-sharing-services-safe-teens.

4. Sophie Schmidt, Uber Before Uber: The Brief Wild Ride of the Jitney, Medium (Dec. 22, 2015), https://medium.com/UBER-under-the-hood/UBER-before-UBER-35730f2bfcc9#:~:text=Streetcars%20were%20cheap%20to%20ride,result%2C%20streetcars%20were%20wildly%20successful.

5. Lyft 2014 Common Carrier Application.

6. Id.

7. 235 A.3d 278 (Pa. 2020).

8. Id. at 305–06.

9. Family Demands Answers About Lyft Ride from School Allegedly Ordered for a 5-Year-Old, WCSC (May 1, 2018), https://www.live5news.com/story/38087786/family-demands-answers-about-lyft-ride-from-school-allegedly-ordered-for-5-year-old.

10. 6 News, UPDATE: Sex Offender Paid for Teen’s Rideshare from Another State, Police Say, WOWT.com (June 7, 2019), https://www.wowt.com/content/news/Bellevue-Police-arrest-man-34-found-with-13-year-old-missing-from-another-state-510970932.html.

11. Mario Ariza & Brooke Baitinger, The 19- and 21-Year-Old Women Trafficked Girls for Sex, Prosecutors Say, Sun Sentinel (Aug. 26, 2020), https://www.sun-sentinel.com/news/crime/fl-ne-two-young-broward-women-charged-sex-trafficking-minors-20200826-l5wbvwpmgzfcbk4daa2kp2xwpa-story.html.

12. Sarah Ashley O’Brien, Prop 22: After $200 Million California Brawl, Uber and Lyft’s Gig Worker Fight Is Far from Over, Mercury News (Nov. 16, 2020), https://www.mercurynews.com/2020/11/16/prop-22-after-200-million-california-brawl-UBER-and-lyfts-gig-worker-fight-is-far-from-over.

13. Id.

14. Doe v. Uber Techs., Inc., 184 F. Supp. 3d 774, 784 (N.D. Cal. 2016).

15. But see §§ 410–429, which provides that the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants. See RST(2)Torts § 409.

16. 184 F. Supp. 3d 774.

17. Civ. Action No. 1:19-cv-11974-IT, 2020 U.S. Dist. LEXIS 90333, at *28–29 (D. Mass. May 22, 2020).

18. Id. at *28 (quoting Carey v. Gatehouse Media Mass. I, Inc., 92 Mass. App. Ct. 801, 80 n.9 (2018)).

19. Anna Deknatel & Lauren Hoff-Downing, ABC on the Books and in the Courts: An Analysis of Recent Independent Contractor and Misclassification Statutes, 18 U. Pa. J.L. & Soc. Change 53, 65 (2015).

20. Sarah F. Carter, Note, What Is an Employee? Crafting a More Effective Test for the Modern Workforce, 47 Fla. St. U.L. Rev. 501 (2020).

21. Richard R. Carlson, Why the Law Still Can’t Tell an Employee When It Sees One and How It Ought to Stop Trying, 22 Berkeley J. Emp. & Lab. L. 295 (2001).

22. 132 U.S. 518, 522 (1889).

23. Roscoe T. Steffen, Independent Contractor and the Good Life, 2 U. Chi. L. Rev. 501 (1935).

24. Id. at 506.

25. Id. at 507 (quoting Hamlyn v. Houston & Co. [1903] 1 K.B. 81, 85 (UK)) [emphasis in original].

26. Id.

27. Id. at 518.

28. Id. at 514.

29. Benjamin C. Cardozo, The Nature of the Judicial Process note 30, at 18–20 (1921).

30. Id. at 28–29.

31. Id. at 166–67.

32. Cunningham v. Lyft, Inc., Civ. Action No. 1:19-cv-11974-IT, 2020 U.S. Dist. LEXIS 90333, at *28–29 (D. Mass. May 22, 2020).

33. Id.

34. Jay Greene, Burning Laptops and Flooded Homes: Courts Hold Amazon Liable for Faulty Products, Wash. Post (Aug. 29, 2020), https://www.washingtonpost.com/technology/2020/08/29/amazon-product-liability-losses.

35. Search v. Uber Techs., Inc., 128 F. Supp. 3d 222, 235 (D.D.C. 2015).

36. Ramos v. Uber Techs., Inc., 2015 WL 758087 (W.D. Tex. Feb. 20, 2015).

37. RST(3)Torts § 57 cmt. f (excluding “collateral negligence” doctrine as a separate category of exceptions to general rule of nonliability for hirers of independent contractors).

38. RST(2)Torts § 413.

39. Burton v. Des Moines Metro. Transit Auth., 530 N.W.2d 696, 697 (Iowa 1995); Maki v. Comm’r of Educ., 568 F. Supp. 252 (N.D.N.Y. 1983); see also Chainani by Chainani v. Bd. of Educ., 663 N.E.2d 283 (N.Y. 1995).