After a night of drinking and socializing, a popular way to get home safely is to call an Uber. On separate occasions, three women (collectively “the Jane Does”) used Uber apps for this purpose. But each was picked up, not by an Uber driver, but by an “imposter” with an Uber sticker on his car. Instead of taking her home safely, he raped or sexually assaulted her in what plaintiffs named the “Fake Uber Scheme.”

Each Jane Doe sued, but the California Court of Appeal found “no special relationship” between her and Uber that would create a duty to protect against “third party assaults” or to warn her about their possibility. The duty does not exist although Uber was well aware of several similar crimes. In addition, the company website provides Uber stickers that anyone can print at home and attach to a car.

Writing for a unanimous three-judge panel, Francis Rothschild, Presiding Justice of the California Court of Appeal for Division One of the Second Appellate District, affirmed the judgment of the Los Angeles Superior Court in Jane Doe, et. al. v. Uber Technologies on June 1 and dismissed the case against Uber without leave to amend.

Uber’s mission statement says it is a “tech company that connects the physical and digital worlds to help make movement happen at the tap of a button.” It advertises its door-to-door ride service as a “safe alternative to drinking and driving…for young, inebriated women.” It also boasts about its partnership with Mothers Against Drunk Driving.

Each of the Jane Doe plaintiffs called for an Uber for a safe ride home from “dance clubs” in downtown Los Angeles or West Hollywood, between June 2017 and February 2018. Each was texted that her Uber was on the way and was given the name, picture, license plate number, and description of the driver and his car.

When approached by imposter drivers, two of the girls immediately got into the fake cars, but another Doe questioned the driver because his description did not match the one the company sent her. He told her he was driving a different car because his other one, which matched the description, had been in an accident. She was convinced and got into the car. Sexual assaults followed in each case.

The Jane Does’ complaint alleges that Uber’s business model creates the risk but does nothing to warn potential victims or take proper safety precautions. Uber, they said, also concealed sexual assaults by imposter drivers, while it continues to advertise itself as a “safe means of transportation for women.”

Rothschild’s opinion centers on the lack of a “special relationship” that would create Uber’s duty to protect or warn against third-party assaults. Uber, she wrote, “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.” She acknowledged that this possibility was foreseeable, but reasoned that the crimes are not “necessary components of the Uber app,” she wrote.

The opinion began with a detailed description of the Uber Business Model and how the ride-share company operates. She explained how it uses GPS technology in smartphones to match users to drivers. She also discussed how Uber decals are affixed to drivers’ cars so they can easily be identified. She acknowledged that “Uber does not attempt to monitor the use or distribution” of these decals.

Next, in a section entitled “Uber’s Knowledge of and Reactions to Incidents of Sexual Assault by Third Parties Posing As Uber Drivers,” the opinion details the history of the “Fake Uber Scheme” that began “as early as 2016 in popular and crowded nightclub/bar/restaurants in and around Los Angeles,” but also in numerous other cities in America and Canada. It states that police contacted Uber multiple times to alert them about “sexual misconduct including rapes….of young, inebriated women.” When Uber victims contact the company, “the company does not route allegations to police, or advise them to hire lawyers or file their own police reports.” They also “did not immediately cooperate with law enforcement” and took “more than seven weeks to respond to search warrants.”

Rothschild then gave the history of the Jane Does’ lawsuit. After the complaint was filed, Uber demurred but got leave to amend, and plaintiffs filed a second amended complaint (SAC). This one alleged negligence and strict liability causes of action. It described the Uber business model, marketing, failures to warn, and alleged “concealment of assaults created the risk associated with the “Fake Uber Scheme.” Uber demurred again, objecting to plaintiffs’ arguments that even if the facts were true, they are insufficient to establish a valid cause of action. The Jane Does then appealed only the negligence cause of action, and the Court discussed whether the complaints stated facts “sufficient to constitute that charge.”

The opinion quickly found that in general, “there is no duty to act to protect others from the conduct of third parties.” To do so requires a “special relationship” and “whether relevant policy considerations counsel limiting that duty.” The Jane Does argued they were passengers as soon as they ordered their Ubers and thus had a “common carrier-passenger relationship” with Uber that created a duty to warn. The opinion reasoned that while the Jane Does were waiting for drivers, Uber had no control over them so they were not “completely submitted” to Uber’s charge, a necessary element for special relationships

Also, the Court found no special relationship because there was no “specific promise in the contract to provide specific protections.” The Does argued that since Uber’s website promises “safe pickups,” it creates an “implied contractual obligation to protect them while they are waiting for their drivers.” The Court found that this website language was not specific enough to create an “enforceable promise.” There was also no malfeasance or intentionally wrongful conduct by Uber that would create a special relationship without a duty, even though Uber “actively concealed the Fake Uber Scheme.”

The Court concluded that even though the “Fake Uber Scheme” might have been foreseeable, it did not establish harm to the Does. Uber’s provision of extensive information about the real Uber drivers who would arrive allows them to avoid the malfeasance that would give rise to a duty to protect.

For these reasons, and because the Does complaint could not be “cured by amendment.” The appellate court concluded that there was “no reasonable possibility the defect can be cured by amendment.”

This case stands as a serious warning that Uber will not be responsible for sexual assaults on riders. With no recourse and no forthcoming protections, all riders, especially young women, should carefully check the identity of the driver who arrives to make sure it matches the description that was texted by Uber. And maybe don’t get in an Uber drunk or alone, especially in areas known for nightlife.