McGinty v. Zheng, No. A-1368-23, 2024 WL 4248446 (N.J. Super. Ct. App. Div. Sept. 20, 2024)
On March 31, 2022, a lawyer and her husband sustained personal injuries after their rideshare driver ran a red light and collided with another vehicle.[1] The lawyer underwent numerous surgeries and other procedures after sustaining cervical and lumbar spine fractures, rib fractures, a protruding hernia, traumatic injuries to her abdominal wall and pelvic floor, and other physical injuries.[2] She was unable to work for over 12 months after the accident, until April 23, 2023.[3] Her husband sustained a fractured sternum and fractures to his left arm and wrist, for which he underwent an operation and received a bone graft.[4]
Approximately a year later, on February 23, 2023, the married couple filed a lawsuit against their rideshare driver, the driver and owner of the other vehicle involved, and the multinational rideshare company along with its subsidiary seeking damages for the couple’s injuries.[5] In response, the rideshare company filed a motion to compel arbitration pursuant to the Arbitration Agreement contained in its Terms of Use.[6] The New Jersey appeals court ruled the married couple’s remedy against the rideshare company was subject to arbitration, finding that the lawyer or her 12-year-old daughter had accepted the Terms of Use when using the company’s food delivery platform.[7] The case was remanded for entry of an order compelling arbitration for the married couple’s claims against the rideshare company and its subsidiary.[8]
The lawyer had created an account with the rideshare company in June 2015.[9] Before requesting the company’s services, such as a rideshare, the user must agree to the company’s Terms of Use.[10] The lawyer agreed to the rideshare company’s Terms of Use, including its Arbitration Agreement, multiple times since creating her account. The Terms of Use were amended on January 18, 2021 (“January Terms”) and on December 16, 2021 (“December Terms”).[11] The rideshare company contended that by accepting the Terms of Use on at least two separate occasions, the lawyer agreed to arbitrate any disputes with the company arising out of her use of the company’s services.
On April 1, 2021, the lawyer accepted the January Terms, which included an agreement to arbitrate personal injury claims.[12] The rideshare company’s records showed that the lawyer agreed to the January Terms by checking the box next to the statement “I have reviewed and agree to the Terms of Use” and clicking the “Confirm” button.[13] The arbitration provision contained in the January Terms includes exceptions to arbitration, the governing rules and procedures for arbitration, how to initiate an arbitration, a delegation clause, and a third-party beneficiary clause. Specifically, the January Terms stated, “You acknowledge and agree that you and [the rideshare company] are each waiving the right to a trial by jury.”[14] The lawyer did not dispute that she agreed to the January Terms.[15]
On January 8, 2022, the lawyer was notified of the December Terms through a pop-up blocking screen in the rideshare company’s app, which she had to accept before continuing to access the company’s services.[16] The pop-up notification stated “We’ve updated our terms” with two clickable hyperlinks to the rideshare company’s Terms of Use and Privacy Notice.[17] The terms required the user to attest that they were at least 18 years old. Again, the rideshare company’s records showed that the lawyer checked the box indicating that she had reviewed and agreed to the Terms of Use.[18]
The married couple argued that their minor daughter, with the lawyer’s permission, used the lawyer’s phone and confirmed her agreement to the December Terms before ordering food for delivery through the company’s food delivery platform.[19] Thus, the couple never saw or confirmed the updated Terms of Use pop-up themselves. The arbitration provision contained in Section 2 of the December Terms provides that disputes which may arise between the lawyer and the rideshare company, including disputes related to auto accidents or personal injuries, will be resolved through binding arbitration...
