When you download Uber’s app, you agree that you’re older than 18, that you’re not using a stolen credit card to pay your driver, and — if you’re like one Philadelphia woman and fracture your spine in a Center City car crash — that you won’t seek a jury trial against the ride-share giant.
But, a Philadelphia Common Pleas Court judge has ruled that, because Uber can’t prove that Jillian Kemenosh actually read the company’s terms and conditions before she signed up or rode in the car that ran a red light, she can’t be forced to settle her claims behind closed doors.
Sitting in the back seat of an Uber in March 2018, Kemenosh was more than halfway home on a four-mile trip from Columbus Boulevard to her Center City apartment when the driver of the 2010 Toyota Highlander ran a red light at 16th and Vine Streets, crashing into another vehicle.
Suffering a fracture to her spine, concussion, and traumatic brain injury, Kemenosh sued Uber, its local subsidiaries, and the driver, requesting a jury to determine her payout.
But, Uber argues in court documents, by approving the ride-share’s “terms and conditions” when she downloaded the app in 2013, Kemenosh had already forfeited her right to a jury, agreeing instead to resolve any legal disputes only through binding arbitration, which forces users to waive their rights to sue and settle matters privately.
Proponents of arbitration say that it’s faster and cheaper than court. But critics say it revokes a consumer’s right to publicly take action against a company.
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“Our entire judicial system is founded on a trial by jury,” said Kemenosh’s lawyer, Joseph L. Messa Jr.
In a 19-page opinion this month, Philadelphia Common Pleas Judge Abbe F. Fletman sided with Kemenosh, determining that because the app makes it possible to register for Uber’s services without clicking on a hyperlink to review the company’s terms of service, “the registration process did not properly communicate an offer to arbitrate under Pennsylvania law.”
Uber and a lawyer for the company did not return requests for comment. Uber has until Feb. 3 to appeal Fletman’s ruling.
Had Kemenosh been required to click a link, check a box confirming she read and agreed to Uber’s terms and conditions, or received email notice of the company’s policies, Uber’s arbitration-only rule would perhaps be valid, the judge wrote.
“In this matter, however, Uber took none of these steps,” Fletman’s opinion said.
This isn’t the first time a question over Uber’s arbitration clause has appeared before a court.
Also that year, a federal appeals court refused to endorse Uber’s arbitration argument in a lawsuit brought by Boston-area riders who accused the company of overcharging for rides to the airport. The panel determined that Uber’s policy section “failed to grab the user’s attention.”
But in 2017, a federal judge bemoaned but backed the company’s contract, sending a Connecticut man’s suit over illegal price surging into arbitration, writing: “This being the law, this judge must enforce it – even if it is based on nothing but factual and legal fictions."
When it comes to requiring customers to approve a “terms and conditions” contract with an arbitration clause, Uber is “not unusual,” said Charles B. Casper, a Philadelphia-based consumer and class-action defense lawyer who is not involved in the Uber case. The clause is typical of many cell phone, cable television, and rental car contracts, Casper said.
But whether Uber gives customers notice that they’re forfeiting their right to a jury is a fair question, Casper said.
Customers agreeing to a company’s terms and conditions can generally find an arbitration clause in a contract written “conspicuously” in bold-face type or all-capital letters.
For Messa, the question is one of transparency.
“You have e-commerce companies here that want to financially benefit from customers but limit their rights from liability,” Messa said. “The constitutional rights of citizens here shouldn’t be taken lightly.”
*Correction: An earlier version of this post incorrectly said Charles B. Casper is an attorney based in Montgomery County. He is an attorney with the Montgomery McCracken firm, based in Philadelphia. The post has been updated.