In Fusco v. Uber, three days before Christmas, Cabrini College director of public safety Joseph Fusco attended a holiday party in University City. Around 11:00pm he requested an Uber to take him to his home in Cherry Hill, New Jersey. Uber drivers do not know the destination until they pick up the passenger; therefore, it was not until Fusco got inside the vehicle that the driver learned that Fusco’s destination was in New Jersey. The driver refused to take Fusco to the destination and after an exchange of words, the driver physically removed him from the car, assaulted him, and left him unconscious on the sidewalk with multiple broken bones and teeth.

Fusco filed a Complaint against Uber Technologies in the Eastern District of Pennsylvania that included claims for negligent hiring, retention, and supervision related to the assault.  Judge Mitchell S. Goldberg of the Eastern District of Pennsylvania dismissed Fusco’s suit stating that Fusco’s factual pleadings could not raise the inference that Uber Technologies was liable for those claims. Under the theories of negligent hiring, retention, and supervision, a plaintiff must show that the employee’s prior bad acts would have put a reasonable employer on notice of the employee’s propensity to injure others. However, Plaintiff’s Complaint did not allege any instances of past misconduct by the driver, and only generally alleged that the driver was unqualified and dangerous. These allegations were not sufficient to find that the driver was unusually prone to violence, such that an employer would have been dissuaded from hiring him.

However, Judge Goldberg did give Fusco a chance to amend his claims. Judge Goldberg also noted that at oral argument, counsel for both parties advised that, after Fusco filed his Complaint, news outlets reported that the driver had a prior criminal conviction.  But, because Fusco did not allege this in his Complaint, Judge Goldberg deferred his consideration of the driver’s past conviction until Fusco amends his Complaint.  Then, assuming discovery commences, Uber will find itself in a dubious position:  what did Uber know (about the driver) and when did Uber know it?   Thanks to Melisa Buchowiec for her contribution to this post.  Please contact Brian Gibbons (on Twitter @bgibbons35) with any questions.