(CN) — An appeals panel ruled 2-1 Friday that a federal court wrongfully ruled in 2022 that Uber had no duty to protect a Washington state driver who was murdered on the job.
The estate of Uber driver Cherno Ceesay sued the rideshare company for negligence and wrongful death in 2021, arguing that Uber knew drivers were at risk of violent assault from passengers but neglected to install any basic safety measures, such as barriers between the front and back seats of Uber vehicles or dash cameras.
They also claimed Uber failed to employ basic identity-verification technology to screen out the two customers who murdered Ceesay — Olivia Breanna-Lennon Bebic and Devin Kekoa Wade — even though they opened the Uber account using a fake name and unverified form of payment just minutes before calling for the ride.
Senior U.S. Circuit Judge Richard Paez, a Bill Clinton appointee, and U.S. Circuit Judge Jacqueline Nguyen, a Barack Obama appointee, wrote that under Washington state law, a rideshare company owes a duty to its drivers to use “reasonable care in matching them with riders.”
In a prior action, the panel asked the Washington state Supreme Court whether Uber owed Ceesay a duty of care, but the court declined their request for certification, leaving the panel to predict that the state Supreme Court would recognize that rideshare companies and their drivers shared a "special relationship."
“Significantly, while all parties agree that this case does not involve an employer-employee relationship, the relationship between a rideshare company and its drivers is closely analogous to the relationship between employer and employee and the relationship between contractor and subcontractor," they wrote.
They also agreed with Ceesay’s estate that Uber penalizes drivers that cancel or decline rides, and that that policy restricted Ceesay’s autonomy over his own personal safety since drivers are given almost no information about passengers or trip details before they pick up a passenger.
“Uber alone controlled the verification methods of drivers and riders, what information to make available to each respective party, and consistently represented to drivers that it took their safety into consideration Ceesay relied entirely on Uber to match him with riders, and he was not given any meaningful information about the rider other than their location,” the majority wrote.
Paez and Nguyen also ruled that Ceesay’s murder was legally foreseeable because Uber had information that riders around the country were committing violent assaults and carjackings against Uber drivers.
In December 2020, Ceesay, 28, was working as an Uber driver in Issaquah, Washington when he responded to a ride request from Bebic and Wade. When Ceesay picked up the pair, they attempted to steal his car and stabbed him in the neck, killing him. Wade is serving 18 years in prison for the murder, and Bebic was sentenced to nine years for manslaughter for her role in Ceesay’s death.
In 2022, a federal court granted summary judgment in Uber’s favor, ruling that Uber did not have a duty to protect Ceesay from the criminal acts of a third party. The judge ruled then that there was no “special relationship” that existed between Ceesay and Uber that gave rise to a duty.
In a dissent, U.S. Circuit Judge Patrick Bumatay, a Donald Trump appointee, agreed with the federal ruling, citing the Washington state Supreme Court rejection of the panel's request for certification on the duty of care question.
"Yet we fashion a new expansive tort liability here with broad-ranging consequences for rideshare companies in particular and the 'gig economy' in general," Bumatay wrote. "Somehow the majority sees no value at looking at how the Washington Legislature has regulated (or not regulated) the precise industry in question here."
Because Uber did not owe a special care of duty to its drivers under state law and Uber retained little control over its drivers’ day-to-day work, he said, it lacked the traits of dependence and control needed to establish a special relationship, and that drivers could reject a passenger at any time for any reason.
“Indeed, if merely matching a driver to a passenger is enough to create a special relationship, then there’s nothing ‘special’ about it,” he wrote.
Paez and Nguyen wrote that Bumatay’s suggestion “ignores the incentive structure created by ridesharing companies."
They said that under Bumatay's logic, "Ceesay would need to reject every ride — effectively quitting his job — in order to ensure his own safety. In this way, Ceesay rationally entrusted Uber to use reasonable care in accounting for his safety when Uber matched him with riders. The relationship thus possessed the ‘traits of dependence and control."
"We are obviously very pleased with the result today and believe that justice was done. The Ninth Circuit recognized the great degree of control that Uber had over this situation as well as the uniquely vulnerable position that drivers like Cherno Ceesay were placed in," attorney for the plaintiff, Alexandra Caggiano, said in an email.
Uber’s lawyers did not immediately respond to requests for comment.
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