SAN FRANCISCO (CN) - A lawyer for Uber told a federal judge Friday that the ride-hailing company isn't responsible for the actions of two of its drivers, whom two women claim raped them on separate occasions.
"The job being performed has nothing to do with the act," Uber attorney Josh Cohen said, arguing that the sexual assaults alleged by two Jane Does occurred for the "personal gratification" of the drivers and were in no way connected to their jobs.
The two women sued Uber this past October, claiming they were sexually assaulted by drivers in Boston and South Carolina despite a corporate marketing campaign that promotes Uber as one of the safest options for getting home after a night of drinking.
Does' lawsuit blames Uber's deficient background checks, which have allowed people convicted of murder, kidnapping, assault, robbery, identity theft and sexually exploiting children to pass through Uber's screening process Another lawsuit filed by district attorneys in San Francisco and Los Angeles makes similar accusations.
One of the women, identified only as Jane Doe 1, says she was raped by a 38-year-old, 200-pound driver named Abderrahim Dakiri. After dropping off Doe 1's friends, Dakiri told her he "really liked her" and then forcibly kissed and groped the 20-year-old passenger after driving her 15 minutes off-route from her destination.
"She was unable to push him off," the complaint states, but she eventually managed to unlock the door and flee the vehicle. She ran to a friend's house, whose door was locked, but a passerby noticed her and together they called 911, according to the lawsuit.
The other assault occurred in South Carolina, where a driver named Patrick Aiello drove Jane Doe 2 and her friends to a bar, then several hours later drove Doe 2 and a male friend back to the friend's apartment. That ride was not requested using the Uber app but was given on the driver's own time, the lawsuit says.
After Aiello dropped off the male friend he offered Doe 2 a ride, which she accepted. Aiello then took her in the opposite direction of her home and after suggesting she pay for the ride with oral sex, he proceeded to viciously rape her, the lawsuit says.
Aiello had previously been convicted of a domestic violence assault charge.
In court on a motion to dismiss, U.S. District Judge Susan Illston asked Cohen about Berger v. Southern Pacific, a 1956 California case where a female passenger was assaulted by a porter on a Pullman car. The First Appellate District ruled that the jury in the case, which found for Berger, had been properly instructed that the Pullman Company was responsible for the porter's conduct because it owed a duty of care to its passengers. Pullman was not found to be a common carrier - a transportation company responsible for the loss of goods during transport - but was still responsible for its passengers' safety.
"When I think about Uber and the cars it becomes more problematic," Illston said. "Is it a common carrier when a passenger is in it? Is it a common carrier other times?"
Jeanne Christensen, the attorney representing the women, said Uber had a higher duty of care. "When a driver is driving on the Uber app is when the common-carrier statute is applicable. That's when he's on duty," she said. "Uber tries to say it's not a transportation service provider under common-carrier statute but that's exactly what it is when the driver is on the Uber app - driving someone from one destination to another for money."
Cohen argued that the Aiello assault didn't occur while he was using the Uber app and that in any case, Uber is merely an arranger of transportation, not a transportation company.
"The notion that Uber is sometimes a common carrier and sometimes not at other times exposes the flaw in the argument it is at all times a facilitator, an arranger, a tool by which a rider can connect with a driver," he said.
Going back to Berger, Illston countered, "We have to apply statutes that were written before Uber thought these things up. They apply to different kinds of companies but they were statutes indented to address a specific kind of problem when you offer rides to the public."
Cohen said, "There is distinction between a facilitator and an actual provider of transportation. I also think from a policy standpoint there is something really problematic that scope of employment disappears from the equation when you're talking about a common carrier."
Christensen said that Uber is in the business of providing transportation to the public. Its drivers routinely interact with the public, she said, and such jobs have always required a higher duty of care.
"It's a public-policy decision," she said. "You're entrusting your safety to this person who's taking you from one place to the next, and on that basis they are held to a higher degree of care."
Illston did not indicate which direction she was leaning in the case, but noted at the outset of the hearing that she had been inclined to deny Uber's motion based on the theory of respondeat superior - that employers are responsible for their employees' on-the-job conduct.
"Plaintiffs have sufficiently alleged the existence of an employment relationship and what they need to as to driver Dakiri. I'm not so clear about Aiello."
But she added, "I think the common-carrier theory may not need to show scope of employment."Follow @MariaDinzeo
Read the Top 8
Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.