Accidents Involving An Uber DriverWith the rise of cell phones, the way in which Americans access individualized transportation has changed. A Taxi used to be the fastest, easiest way to get transportation, even if in an unfamiliar city. Today, Uber has taken that mantle and become the go-to means to finding quick transportation. But what happens when you are injured while in an Uber car? This answer was clear in the older, taxicab company model: the driver was an employee and the company was an employer, meaning recovery could be sought from the company itself. Uber is a bit different. Below is a brief overview of how compensation from injuries can be pursued when an individual is injured in an accident involving an Uber driver.

How Does Liability Attach In A Car Accident?Every driver owes a duty of reasonable care to other drivers on the road, to passengers—of both that driver and of other vehicles—and to pedestrians. This generally means that the driver must act in a reasonable and careful manner while driving. A driver breaches this duty by acting carelessly, such as using a cell phone while driving or speeding. If this carelessness causes an accident and injury to another, the driver is liable for those injuries. This concept is called negligence. When these elements—duty, breach, causation, and injury—are present, the injured individual can bring a claim for negligence to recover monetary damages.

The fact that one driver involved in an accident is an Uber driver will not alter these elements. The Uber driver will be personally liable (likely through personal car insurance) for his negligent acts. Additionally, a passenger in an Uber car will still be able to bring a claim for negligence against another driver the causes a collision with the Uber car. These well-established principles will handle most accidents involving Uber drivers. However, Kansas only requires drivers to carry insurance covering $25,000 for injuries to another and $50,000 total liability for a single accident. This means that in accidents where an individual is seriously injured, the personal insurance of the drivers may not be sufficient to compensate for injuries suffered. For these types of accidents, it may be necessary to get to large, commercial insurance policies or assets of the employer, Uber.

How Can Liability Arising From A Car Accident Attach To Uber?The true answer to this question, as it stands today, is “it may not.” However, courts, including those in Kansas, are tasked with applying current laws and legal principles to new situations every day. Still, with the Uber driver’s own personal insurance covering must accidents, many courts have not had to examine traditional means of applying liability to an employer in the context of Uber. Two cases from federal courts, Doe v. Uber Technologies, Inc. and Search v. Uber Technologies, Inc., have touched on these issues with varying results. Below are a few theories discussed in these cases that may allow for liability to reach Uber.

Respondeat SuperiorAn extremely long-standing and well recognized means of attaching liability to an employer is through respondeat superior. This legal doctrine is based on the idea that if an employer is allowed to benefit from the actions of its employees, it must also answer for the wrongs done by those employees. The key to establishing this type of liability is showing that driver was an employee, rather than an independent contractor, and that the driver was acting within the course and scope of her employment. In Uber cases, drivers will almost always be acting in the course and scope of their employment in accident cases: the employees are hired to drive patrons. Much less clear is whether Uber drivers would be found to be employees under the doctrine. It is important to note that what employers call a driver is not determinative, so the fact that Uber insists to its drivers and the public that Uber drivers are independent contractor does not resolve this question. As recently noted in Knorp v. Albert, the court will determine whether a driver is an employee or independent contractor. The court looks to a number of factors, but the most important is how much control the employer is able to exert over the driver. Though Uber put forth several examples of how much freedom its drivers had (ability to choose hours, decline customers, etc.) in the Search case, the court there ultimately found the driver to be an employee under the laws of the District of Columbia. The court focused on Uber’s ability to set the rate charged by the driver, punish the driver for declining too many customers, and assessing performance of the driver (albeit through customer ratings only). These factors would likely play out similarly in a Kansas court, but as the law stands today, it is unclear if this form of vicarious liability would attach in Kansas.

Common Carrier LiabilityKansas law imposes a heightened standard of care upon common carriers, such as buses and trains. This means that common carriers must be more careful than regular drivers to avoid negligence claims; any deviation for the highest standard of care practices with operating the business is enough for liability to attach. Kansas currently holds taxi cabs to be common carriers, as noted in King v. Vets Cab, Inc. Based upon the clear similarities, it is highly likely Kansas would apply this heightened standard of care to Uber drivers. This means that a passenger in an Uber car can likely recover from both drivers in an accident, as the Uber driver would have to be perfectly innocent to escape liability to its passengers.

Negligent HiringNegligent hiring is an independent claim brought against an employer. As such, it doesn’t matter whether the driver is determined to be an independent contractor or employee. The key is that the employer failed to exercise reasonable care in hiring the driver. For this to be shown, the employer must have known or should have known (by conducting a background check or other reasonable search) that the driver was unfit for the assigned task. In the Doe case, the passenger was assaulted by her Uber driver, who had two prior convictions of sexual assault when he was hired by the company. The court found that this could constitute negligent hiring, because these convictions would have been produced by a simply search of court records. The same principle can be applied to traffic accidents: if a potential driver has several tickets or egregious offenses, such as a DUI, it would likely not be reasonable to hire the driver to transport passengers. Determining if negligent hiring exists is a very fact intensive inquiry based on each case. It is also worth noting that Uber has, since the events in Doe, begun performing background checks on potential drivers, reducing the likely success of negligent hiring claims today.

If you have been injured in a car accident involving an Uber driver, these complex and unsettled issues may arise in your case. Because of the uncertain nature of this area, it is especially important that experienced and successful legal counsel be retained. This ensures that you have the best chance of receiving the full redress for your injuries.