Uber Cabs must pay- literally! Criminal and Civil remedies

Shiv Kumar Yadav, the man who was driving the Uber Cab was arrested yesterday in his home town Mathura. It is said that he is a repeat offender. In 2011 he was in jail for allegations of rape. The police is checking to see if he was acquitted in the case as he claims.

Uber Cabs has said they will fully cooperate with the investigation. They also issued a statement:

"We became aware of the incident this morning. Safety is Uber's highest priority and we take situations like this very seriously. We are working with the police as they investigate, and will assist them in any way we can to determine what happened," the statement read.

However a large part of the liability is of Uber Cabs. Uber Cabs must pay- literally. Aside from the criminal liability, the company should face civil claims. There are clear shortcomings on their hiring policies. The news says there was lack of GPS in the car and no registration of the driver. The reports show that the US-based company neither ran a background check nor got police verification done for the driver as required.

Uber admits in its statement as to the reason why people use their services:

"We work with licensed driver-partners to provide a safe transportation option, with layers of safeguards such as driver and vehicle information, and ETA-sharing to ensure there is accountability and traceability of all trips that occur on the Uber platforms," the statement further read.

People avail of Uber services because of their reputation as being safe and expensive hence implying that extra care would be taken. Standards that Uber seems to maintain in countries abroad cannot be done away with merely because they are allegedly using a third party in India. There is definitely another case of deficiency of services here.

Law abroad:

Uber registered in California would face charges there under:

California Civil Jury Instructions (CACI)

6. Negligent Hiring, Supervision, or Retention of Employee

[Name of plaintiff] claims that [he/she] was harmed by [name of employee] and that [name of employer defendant] is responsible for that harm because [name of employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of employee] was [unfit/ [or] incompetent] to perform the work for which [he/she] was hired;
2. That [name of employer defendant] knew or should have known that [name of employee] was [unfit/ [or] incompetent] and that this [unfitness/ [or] incompetence] created a particular risk to others;
3. That [name of employee]’s [unfitness/ [or] incompetence] harmed [name of plaintiff]; and
4. That [name of employer defendant]’s negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

Give this instruction if the plaintiff alleges that the employer of an employee who caused harm was negligent in the hiring, supervision, or retention of the employee after actual or constructive notice of the employee’s unfitness. For instructions holding the employer vicariously liable (without fault) for the acts of the employee, see the Vicarious Responsibility series, CACI No. 3700 et seq.

It appears that liability may also be imposed on the hirer of an independent contractor for the negligent selection of the contractor. (SeeNoble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 662—663 [109 Cal.Rptr. 269].)

Sources and Authority

• “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054 [58 Cal.Rptr.2d 122].)
• “Negligence liability will be imposed on an employer if it ‘knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.’ ” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139 [91 Cal.Rptr.3d 864].)
•  “Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339—1340 [78 Cal.Rptr.2d 525].)
•  “A claim that an employer was negligent in hiring or retaining an employee-driver rarely differs in substance from a claim that an employer was negligent in entrusting a vehicle to the employee. Awareness, constructive or actual, that a person is unfit or incompetent to drive underlies a claim that an employer was negligent in hiring or retaining that person as a driver. (See Judicial Council of Cal. Civ. Jury Instns. (2011) CACI No. 426.) That same awareness underlies a claim for negligent entrustment. (See CACI No. 724.) In a typical case, like this, the two claims are functionally identical.” (Diaz v. Carcamo (2011) 51 Cal.4th 1148, 1157 [126 Cal.Rptr.3d 443, 253 P.3d 535].)
• Restatement Third of Agency, section 7.05(1), states: “A principal who conducts an activity through an agent is subject to liability for harm to a third party caused by the agent’s conduct if the harm was caused by the principal’s negligence in selecting, training, retaining, supervising, or otherwise controlling the agent.”

Of course to sue the parent company abroad would require a look into the corporate relationship between Uber India and Uber parent company California.

However in India action is possible under the criminal and civil remedies. The incident took place during the course of work of the employee. Further reports show no safeguards were implemented by Uber. They might claim that registration was done and GPS were fitted for others but even one incident of negligence is one too many.

In a case against Uber for the death of a six year old girl on New year’s Eve, Uber’s defence is that the driver was not using their mobile application and was not their employee. This certainly cannot be claimed here in the present case.

The argument by Uber that it hires independent contractors also will not hold good as they can be liable for third party actions as well under Torts.

The cab driver will indeed face criminal charges. The police has issued a notice to the managing director of Uber services under Section 161 of the CrPC to join the investigation and explain the security lapses. The company will be held liable for negligence, officials said. But this refers to criminal negligence.

There are also reports suggesting that MadhurVerma, New Delhi police deputy commissioner, said that police will also take legal action against Uber — valued at $40 billion — for failure to run checks on the driver’s background and whether he had an adequate GPS device in his car. The police are taking legal advice before deciding whether it would be a criminal or civil case.

However, the person affected can initiate action privately as well. This case should go beyond criminal negligence. You cannot lock up a company. Also what hurts a company the most is Money.

In the larger paradigm, money is no compensation to the woman. However, but stringent action would help tighten the reins on other such companies operating loosely through third parties and not being held responsible. This is a question of safety of people (not on any account overlooking the unfortunate incident that has occurred).