Rideshare ballot question could affect non-drivers

Measure could end 'vicarious liability' of app-based driver firms

MUCH OF THE DEBATE over the app-based-driver initiative petition has focused on how it would affect the drivers themselves. As important as those issues are, there is another aspect that has been overlooked. If the initiative petition establishes in law that drivers for Uber, Lyft, GrubHub, and other apps are “independent contractors” for all purposes, that could have farther-reaching consequences.

The distinction between independent contractor and employee is a determining factor in whether a company can be held liable for the torts caused by that worker. Under a doctrine known as vicarious liability, employers are liable for the torts committed by employees acting in the scope of their employment. The rule is different for independent contractors. As former Supreme Judicial Court Justice Francis Spina observed for a unanimous court in 2003, “Generally speaking, the employer of an independent contractor is not liable for harm caused to another by the independent contractor’s negligence…”

The whole concept of vicarious liability can seem counterintuitive to some because under the doctrine an employer owes damages to a plaintiff even when the fault – meaning negligence, usually – lies completely with the employee. The company may have done nothing “wrong,” but still be on the hook. Yet vicarious liability has been a facet of the common law stretching back to before the founding of the United States. It shares philosophical similarities with other fault-free liability laws: workers compensation and products liability. Commentators today generally acknowledge that holding employers vicariously liable is fair when the employer’s enterprise created the risk of harm to the plaintiff. Also, holding employers responsible for employees’ torts can be an efficient way to encourage better risk-avoidance because the company will be motivated to revise its policies to avoid future liabilities.

Today, the law in Massachusetts is unclear as to whether app-based drivers are independent contractors or employees. The initiative petition would settle that uncertainty in the company’s favor. The proposal would create a new statute establishing that app-based drivers are independent contractors. By the terms of the initiative petition language, no contrary law could supersede that.

While the initiative petition is geared toward employment law, the broad sweeping language could be read to extend to vicarious liability as well. Nothing in the petition explicitly limits that reading to employment law. The proposal would declare app-based drivers independent contractors “for all purposes with respect to” their relationship with their employers.

If app-based drivers in Massachusetts were deemed independent contractors with respect to vicarious liability, then individuals injured by those drivers would have the court doors slammed in their faces if they tried to sue the companies for their contractors’ wrongs. Only under special circumstances – where the employer controlled the tortious contractor’s actions – could an employer be held vicariously liable for the actions of an independent contractor.

Without the ability to sue the app-based employer, plaintiffs would be left trying to collect from the drivers themselves, or more likely, their insurers. The company coffers would be out of reach. The insurers would not be liable for anything beyond the coverage amount in the policy. The drivers have much more limited assets than their employers.

It is true that the 2016 rideshare law set minimum insurance levels for rideshare drivers and rideshare companies on top of the usual insurance requirements. However, that legislation dealt exclusively with the rideshare industry – Uber and Lyft – whereas the proposed ballot question also covers delivery companies. Also, the $1 million per-incident liability coverage mandated for working rideshare drivers may sound like a lot, but it is often a fraction of what plaintiffs in wrongful death cases are owed. Nearly all claims are settled before trial, and the details of those settlements are almost always shielded from public view. It is difficult therefore to say with any authority what a defendant could expect to owe for causing a wrongful death or debilitating injuries. However, some examples can provide a starting point. In a wrongful death case from San Francisco, the parents of Amelie Le Moullac, a bicyclist who was struck and killed by a delivery truck driver, sued the driver’s employer, Daylight Foods. The parents were awarded a total of $4 million in damages after the 2013 trial. In New Jersey, the estate of Tom Squire – who in 2017 had rear-ended a delivery truck, which then backed into his car, killing him – was awarded a judgement of $2.95 million.

A tragic, debilitating, or deadly injury is, unfortunately, a potential outcome for anyone who uses the roadways. While the customers of Uber and Lyft have signed away their rights to sue the companies in court – agreeing instead to binding arbitration – other road users can sue those companies for alleged wrongs, including under a theory of vicarious liability. At least for now.

Meet the Author

Andy Metzger

Guest Contributor

About Andy Metzger

Andy Metzger is currently studying law at Temple University in Philadelphia. Previously, he joined  CommonWealth Magazine as a reporter in January 2019. He has covered news in Massachusetts since 2007. For more than six years starting in May 2012 he wrote about state politics and government for the State House News Service.  At the News Service, he followed three criminal trials from opening statements to verdicts, tracked bills through the flumes and eddies of the Legislature, and sounded out the governor’s point of view on a host of issues – from the proposed Olympics bid to federal politics.

Before that, Metzger worked at the Chelmsford Independent, The Arlington Advocate, the Somerville Journal and the Cambridge Chronicle, weekly community newspapers that cover an array of local topics. Metzger graduated from UMass Boston in 2006. In addition to his written journalism, Metzger produced a work of illustrated journalism about Gov. Charlie Baker’s record regarding the MBTA. He lives in Somerville and commutes mainly by bicycle.

About Andy Metzger

Andy Metzger is currently studying law at Temple University in Philadelphia. Previously, he joined  CommonWealth Magazine as a reporter in January 2019. He has covered news in Massachusetts since 2007. For more than six years starting in May 2012 he wrote about state politics and government for the State House News Service.  At the News Service, he followed three criminal trials from opening statements to verdicts, tracked bills through the flumes and eddies of the Legislature, and sounded out the governor’s point of view on a host of issues – from the proposed Olympics bid to federal politics.

Before that, Metzger worked at the Chelmsford Independent, The Arlington Advocate, the Somerville Journal and the Cambridge Chronicle, weekly community newspapers that cover an array of local topics. Metzger graduated from UMass Boston in 2006. In addition to his written journalism, Metzger produced a work of illustrated journalism about Gov. Charlie Baker’s record regarding the MBTA. He lives in Somerville and commutes mainly by bicycle.

It is impossible to predict with total accuracy how a court might interpret the language of the initiative petition, but there is still time for others to consider the effects the legislation might have before it becomes law. The proponents of this initiative petition should be asked their views on whether it would shield companies from vicarious liability claims, and whether that was one of their aims. The lawmakers considering legislative proposals to forestall a ballot question should think about whether they should leave open the possibility of holding the companies vicariously liable in tort law even if the drivers are classified as independent contractors for employment law purposes. Voters who may have tuned-out the debate because it seems focused on a narrow employment law question might want to sit up and take more notice.

Andy Metzger is a former reporter at CommonWealth and current law student at Temple University.