Doe v. Uber Techs., Inc.

90 F.4th 946

Jane DOE, Plaintiff-Appellant, v. UBER TECHNOLOGIES, INC.; Rasier, LLC; Rasier CA, LLC, Defendants-Appellees.

No. 22-16562

United States Court of Appeals, Ninth Circuit

Argued and Submitted November 14, 2023 San Jose, California

Filed January 9, 2024

Appeal from the United States District Court for the Northern District of California, Jacqueline S. Corley, District Judge, Presiding, D.C. No. 3:19-cv-03310-JSC

Before: Susan P. Graber, Richard A. Paez, and Michelle T. Friedland, Circuit Judges.

ORDER CERTIFYING QUESTION TO THE SUPREME COURT OF CALIFORNIA

We respectfully ask the California Supreme Court to answer the certified questions presented below because, pursuant to California Rule of Court 8.548, we have concluded that resolution of these questions of California law "could determine the outcome of a matter pending in [this] court," and there is no "controlling precedent."

This case involves the sexual assault of a rideshare passenger by an individual posing as an authorized Uber driver. The issue is whether Uber owed the passenger a duty of care because it created or contributed to her risk of sexual assault at the hands of an imposter driver.

For reasons we discuss below, we certify the following questions:

1. What duty of care, if any, does Uber owe a rideshare passenger who suffers an assault or other crime at the hands of an unauthorized person posing as an Uber driver?

2. If there is a basis for holding that Uber owed such a duty of care, do the Rowland factors counsel in favor of creating an exception to that duty in a category of cases involving rideshare companies and customers harmed by third-party conduct?

We recognize that our phrasing of these questions does not restrict the court's consideration of the issues involved and that the court may rephrase the questions as it sees fit. We agree to accept the court's answers.

I.

We briefly summarize the material facts. In August 2018, Plaintiff Jane Doe requested that her boyfriend call her an Uber remotely because her phone had low battery. Plaintiff's phone, however, lost its charge, and she did not receive from her boyfriend the information identifying the authorized vehicle. Plaintiff then entered a car displaying an Uber decal that stopped in front of her. In fact, the driver—Brandon Sherman—was no longer employed by Uber, having been previously terminated for sexually assaulting two female passengers. Nonetheless, he retained and displayed the Uber decals. Sherman proceeded to kidnap and sexually assault Plaintiff, for which he was eventually prosecuted and convicted.

Plaintiff later filed this lawsuit against Uber Technologies, Inc., Rasier, LLC, and Rasier CA, LLC (collectively, "Uber"), alleging that the company was both vicariously liable for the misconduct of its ostensible agent and negligent in failing to keep its riders safe. At the motion to dismiss stage, the district court dismissed the vicarious liability claims but allowed the negligence claims to proceed. The district court ultimately granted Uber's motion for summary judgment on the negligence claims, holding that the negligence theory relevant here had been "foreclosed" by a recent California Court of Appeals case, Jane Doe No. 1 v. Uber Techs., Inc., 79 Cal.App.5th 410, 294 Cal.Rptr.3d 664 (2022). The district court concluded based on Jane Doe No. 1 that Uber did not owe Plaintiff a duty of care under California law.

II.

"Certification is warranted if there is no controlling precedent and the California Supreme Court's decision could determine the outcome of a matter pending in our court." Kuciemba v. Victory Woodworks, Inc., 31 F.4th 1268, 1271 (9th Cir. 2022), certified question answered, 14 Cal.5th 993, 310 Cal.Rptr.3d 97, 531 P.3d 924 (2023). This appeal "not only meets both criteria, but also presents issues of significant public importance for the State of California." Id. In particular, the California Supreme Court's answers to the questions presented above will clarify the scope of a merchant's liability in tort with respect to customers who experience foreseeable injury due to third-party conduct. This decision will have especially profound implications for online platform companies, including but not limited to those that, like Uber, provide ridesharing services. In fact, as we note further below, the answers to our questions will directly impact a large number of cases currently pending before state and federal courts in California.

A.

"When interpreting state law, we are bound to follow the decisions of the state's highest court, and when the state supreme court has not spoken on an issue, we must determine what result the court would reach based on state appellate court opinions, statutes and treatises." Mudpie, Inc. v. Travelers Cas. Ins. Co. of Am., 15 F.4th 885, 889 (9th Cir. 2021) (quoting Diaz v. Kubler Corp., 785 F.3d 1326, 1329 (9th Cir. 2015)). "Decisions of the California Supreme Court, including reasoned dicta, are binding on us as to California law." Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013). By contrast, decisions of the California Courts of Appeal "are persuasive but do not bind each other or us." Id. Still, "in the absence of convincing evidence that the highest court of the state would decide differently, a federal court is obligated to follow the decisions of the state's intermediate courts." In re Kirkland, 915 F.2d 1236, 1238 (9th Cir. 1990) (internal quotation marks and citation omitted).

To begin, Section 1714(a) of the California Civil Code provides the "general rule" of duty in California:

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

This duty, though broad, has important limits. In particular, it "imposes a general duty of care on a defendant only when it is the defendant who has created a risk of harm to the plaintiff, including when the defendant is responsible for making the plaintiff's position worse." Kuciemba v. Victory Woodworks, Inc., 14 Cal.5th 993, 1016, 310 Cal.Rptr.3d 97, 531 P.3d 924 (2023) (cleaned up) (emphasis added) (quoting Brown v. USA Taekwondo, 11 Cal.5th 204, 214, 276 Cal.Rptr.3d 434, 483 P.3d 159 (2021)).

A corollary of this misfeasance principle is that the law "does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged." Id. (quoting Brown, 11 Cal.5th at 214, 276 Cal.Rptr.3d 434, 483 P.3d 159, 276 Cal.Rptr.3d, 483 P.3d).¹ Thus, when a defendant has "create[d] or contribute[d] to the [plaintiff's] risk of [harm]," the defendant owes the plaintiff a duty of care under Section 1714. Id. at 1017, 310 Cal.Rptr.3d 97, 531 P.3d 924. This includes instances of "liability premised on the conduct of a third party," at least where the "defendant had a duty to prevent injuries due to its own conduct or possessory control." Id. at 1018, 310 Cal.Rptr.3d 97, 531 P.3d 924 (emphasis omitted).²

One California court has recently considered whether Uber owes a duty of care under Section 1714 to the victims of sexual assaults committed by imposter drivers. In Jane Doe No. 1 v. Uber Techs., Inc., 79 Cal.App.5th 410, 294 Cal.Rptr.3d 664 (2022), the plaintiffs—women who had been abducted and sexually assaulted by assailants posing as authorized Uber drivers—brought negligence claims against Uber, arguing that the company had created or contributed to their risk of harm and thus owed them a duty of care under Section 1714. The court rejected this argument, concluding that Uber did not owe the plaintiffs a duty of care because they failed to "allege[ ] actions by the Uber entities that created a peril, that is, an unreasonable risk of harm to others." Id. at 426, 294 Cal.Rptr.3d 664 (internal quotation marks and citation omitted). As the court observed, "[a]lthough it is foreseeable that third parties could abuse the platform in this way, such crime must be a 'necessary component' of the Uber app or the Uber entities' actions in order for the Uber entities to be held liable, absent a special relationship between the parties." Id. at 415, 294 Cal.Rptr.3d 664 (emphasis added). Because "[t]he violence that harmed the Jane Does—abduction and rape—is not a necessary component of the Uber business model," the court held Uber owed no duty of care to the Jane Does. Id. at 427-28, 294 Cal.Rptr.3d 664. The California Supreme Court later declined to review or depublish the decision.

Relying in significant part on Jane Doe No. 1, the district court determined that Uber did not owe Plaintiff a duty of care. See Doe v. Uber Techs., Inc., No. 19-CV-03310-JSC, 2022 WL 4281363, at *2 (N.D. Cal. Sept. 15, 2022) (concluding that each of Plaintiff's legal theories was "foreclosed" by Jane Doe No. 1). Specifically, the court adopted and applied Jane Doe No. 1's "necessary component" test, determining that none of Plaintiff's various legal theories survived. Id. at *4. As a result, "even drawing all reasonable inferences from the evidence in Plaintiff's favor, Uber did not have a duty under California law to Plaintiff." Id.

While this appeal was pending, however, the California Supreme Court decided Kuciemba v. Victory Woodworks, Inc., 14 Cal.5th 993, 310 Cal.Rptr.3d 97, 531 P.3d 924 (2023), a case that calls into question whether the court would decide the issue presented in Jane Doe No. 1 similarly. In Kuciemba, the defendant had violated a county health order by transferring employees who had been exposed to COVID-19 to a different worksite. As a result, an employee had contracted COVID-19, which he later transmitted to his wife. The question presented in Kuciemba was whether the defendant owed the employee's wife a duty of care under Section 1714 because it had created or...