The mother of a 13-year-old Virginia girl is suing ride-sharing app Uber for $2 million, claiming her child was sexually assaulted by one of its drivers—a man whom, the complaint charges, the San Francisco startup should have known to be unsafe.
On up to 20 separate occasions in October and November of 2014, the unnamed teen used Uber to catch a ride back and forth from her middle school. More often than not, 39-year-old Isagani Marin was the driver who pulled up, according to the complaint filed in a Virginia Beach circuit court this month and posted by Courthouse News.
During these trips, the mother alleges that Marin acted inappropriately, asking her daughter questions like, “Can I buy you a pair of panties for your birthday?” and “‘What days does your mom work and when is she not home?” He also repeatedly made the child pinky promise that she would not “get a boyfriend until you turn 18 years old,” according to the complaint.
The child gave Marin a low rating, according to the complaint, thinking that it would cause the app to send a different driver, but Marin continued to respond.
On November 7, Marin again gave the girl a ride home. During the drive, at a time when she could not safely exit the vehicle, Marin reached back between the seats and rubbed the girl’s inner thigh and asked if her mother was home, according to the complaint.
The girl ran from the car crying, and she and her mother called the police. On April 27, a Virginia Beach Juvenile and Domestic Court judge found Marin guilty of criminal assault and battery and handed him a six-month suspended sentence, according to a court representative.
Calls to Marin and his lawyer for comment were not returned.
A spokesman from Uber responded to The Daily Beast’s request for comment with a statement: “We are extremely troubled by these allegations and have cooperated fully with law enforcement.”
The complaint alleges that the girl has suffered emotional distress, including a fear of men, as a result of the assault and that Uber is to blame. Uber was negligent to hire Marin and to retain him, and knew or should have known about his alleged history of unwelcome sexual advances, the complaint continues.
Uber’s unique service and rapid growth—the app that started in 2009 as a luxury car service in San Francisco has quickly spread to 200 cities in 51 countries—has come with a torrent of legal troubles, so this is hardly the first time the criminal behavior of an Uber driver has made news. In recent years, Uber has distanced itself from dozens of drivers accused of other horrific charges, including punching, choking, spitting on, hammering, fondling, and kidnapping riders, as well as running over and killing small children.
Uber, along with its competitor Lyft, were just given permission to legally operate in Virginia in February, months after the child’s assault. The access has come with new requirements, including that drivers undergo extensive criminal background checks and that drivers must buy insurance covering accident damage and abide by a zero-tolerance drugs and alcohol policy.
Judging by the all-caps disclaimer section in the Uber Terms of Service, the company believes strongly that an unsafe travel experience is not its problem: “UBER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.”
Curiously, the company has walked back from its previous, bolder Terms of Service, which up until April read, “YOU UNDERSTAND, THEREFORE, THAT BY USING THE APPLICATION AND THE SERVICE, YOU MAY BE EXPOSED TO TRANSPORTATION THAT IS POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL TO MINORS, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE APPLICATION AND THE SERVICE AT YOUR OWN RISK.”
But a screaming disclaimer doesn’t absolve Uber from Marin’s assault, the Virginia mother’s complaint argues. “Under Virginia law, employers are liable for their employees,” the unnamed mother’s attorney, Jake Denton, told The Daily Beast.
“Uber could very well be liable if the courts move toward rulings that the drivers are employees,” Janelle Orsi, an attorney in San Francisco who founded the Sustainable Economies Law Center and specializes in the sharing economy, responded in an email to The Daily Beast.
The courts seem to agree. Just Wednesday, the California Labor Commission ruled that Uber driver Barbara Berwick was an employee, not simply an independent contractor, and awarded her $4,152 for expenses and costs during the eight weeks she worked as a driver—a small monetary win that could have big implications for workers’ rights, for the 1 million Uber drivers worldwide, and for the future of the $50 billion startup.
Whether that type of ruling will translate to criminal cases like the one in Virginia remains to be seen.
Employers are usually vicariously liable for a wrongdoing committed by an employee if it happens on the job, but that isn’t necessarily true for assault, Orsi said. “If the driver is determined to be an employee, Uber would still argue that the assault was outside of the scope of employment and that it wasn't foreseeable by Uber that it would happen. The victim will have a better case if this driver had a criminal record and if Uber is leading passengers to believe that it is screening drivers based on criminal records.”
An Uber spokesperson told The Daily Beast, “When we learned of the [Marin] incident, we immediately removed the driver’s access to the platform,” but wouldn’t respond to questions concerning whether he underwent a criminal background check.
On the company’s website, Uber says it screens drivers’ county, federal, and multistate criminal records. If indeed Uber had checked into Marin’s arrest record it would have found the following charges: Driving Under the Influence (1998), at least three traffic violations including speeding and failure to stop, reckless driving (2002 and 2015), trespassing (2001), and an arrest in 2007 for disturbing the peace and assault and battery (Marin was released on his own recognizance and the charges were later dropped). Most of Marin’s charges are more than seven years old, though—Uber’s cut-off for disqualification.