PITTSBURGH – Uber denies all liability in a Carnegie man’s litigation against the ride-share company, which alleged that the plaintiff and his friends were nearly killed by their driver in a ride-gone-wrong.
Phillip Pesano of Carnegie first filed suit in the Allegheny County Court of Common Pleas on Nov. 2 versus Uber Technologies, Inc. of San Francisco, Calif. and Andrew Farkosh, of West Mifflin.
“On Dec. 24, 2019, plaintiff Pesano was with three other acquaintances who had wished to be transported from one section of Pittsburgh to another section of Pittsburgh. One of the plaintiff’s acquaintances requested that Uber provide vehicle transport. Pursuant to the request for Uber to provide transport in consideration for a charge, defendant Farkosh picked up the plaintiff and the three other persons,” the suit said.
“On Forbes Avenue in Oakland, defendant Farkosh stopped the Uber vehicle, got out of the vehicle and insisted that all of the passengers get out as well. The four passengers began to walk away, but shortly thereafter, Farkosh began pursuing the passengers on foot. Farkosh chased plaintiff Pesano on foot for at least 10 to 15 minutes. During the foot chase, Farkosh caught up with plaintiff Pesano in the backyard of a property located on the 3300 block of Niagara Street in Oakland.”
Pesano added that Farkosh attacked him, withdrew a firearm, aimed it at his head and pulled the trigger. Pesano said he suffered an immediate onset hearing loss in his right ear, injury to his right scalp requiring staples, scarring, headaches, dizziness, loss of balance, sleep disturbance, fatigue, anxiety and other physical and psychological injuries.
The suit was removed to the U.S. District Court for the Western District of Pennsylvania the following day, on Nov. 3 – but the plaintiff motioned to remand the case to state court on Nov. 22, citing a lack of diversity of citizenship between the parties.
Additionally, counsel for Uber filed a motion to dismiss the case on Nov. 23 for failure to state a claim upon which relief could be granted.
“Uber states that it is not subject to vicarious liability as a matter of law because the assault committed by defendant Farkosh was committed for personal reasons and therefore not with the course and scope of any alleged employment relationship with Uber. Uber states that it is not subject to vicarious liability because plaintiff cannot establish the four prongs of a claim for vicarious liability pursuant to well-established law,” the dismissal motion read, in part.
“Uber states that plaintiff cannot establish the elements of a claim for negligent hiring, training, supervision, or retention pursuant to well-established law. Uber states that the intervening and superseding criminal actions committed by Farkosh sever any potential liability as to Uber pursuant to well-established law.”
However, U.S. District Court for the Western District of Pennsylvania Judge Robert J. Colville ruled on Nov. 24 to throw out the dismissal motion, without prejudice.
A subsequent Nov. 30 filing from Uber indicated it did not oppose the plaintiff’s motion to remand the case, so Colville entered such an order the very same day, remanding the case to the Allegheny County Court of Common Pleas.
UPDATE
Uber filed preliminary objections in the matter on Dec. 10, putting forth numerous arguments as to why the plaintiff’s counts should fail and the case should be dismissed.
“The facts, taken in the light most favorable to the plaintiff, also demand dismissal of this case against Uber. This assault was purely personal and committed for purely personal reasons. Plaintiff alleges that Farkosh got out of his vehicle, abandoned the vehicle, chased the plaintiff on foot for 15 minutes, and only then assaulted him. There is nothing about such an assault that could possibly be deemed in furtherance of Uber’s business,” according to Uber’s counsel.
“Even if the allegations of assault are accepted as true, Uber cannot be found liable on a theory of respondeat superior for the assault committed by Farkosh. Such actions are outrageous, bearing no relation to his work and were entirely unforeseeable. Plaintiff cannot succeed on a vicarious liability claim against Uber and the instant motion to dismiss should be granted.”
The ride-share company continued that Farkosh’s alleged conduct in “expelling passengers from the vehicle, chasing plaintiff and his friends on foot, and assaulting plaintiff are wholly unrelated to the nature of the work of vehicle transportation” and that the incident “occurred 15 minutes after he and his friends were ejected from Farkosh’s vehicle” – and therefore, the plaintiff cannot prove his vicarious liability claim.
Additionally, the company stated Farkosh passed a background check and it would not have been on notice that Farkosh was capable of such alleged behavior.
“The plaintiff has not alleged that Uber knew of any prior bad acts committed by Farkosh or any prior propensity of Farkosh to injure anyone. The plaintiff has not alleged that Uber knew of or had any prior knowledge of Farkosh’s possession of a firearm in his vehicle. Drivers who utilize the Uber App are background checked in compliance with Pennsylvania law by nationally accredited and licensed third-party background check provider, Checkr, Inc.,” the objections stated.
“As described above, Checkr, Inc. conducted a background check on Farkosh, which Farkosh passed. Plaintiff has not alleged any past misbehavior by Farkosh that did not appear on the Checkr background report or that would have put Uber on notice of a propensity for misconduct. Plaintiff has not alleged any past misbehavior by Farkosh that could have put Uber on notice that he would carry a handgun in his vehicle.”
For multiple counts of negligence and negligent infliction of emotional distress, the plaintiff is seeking damages in excess of the local arbitration limits, plus costs, interests and a trial by jury.
The plaintiff is represented by Kenneth J. Nolan of Phil DiLucente & Associates, in Pittsburgh.
The defendant is represented by John T. Donovan and Caroline S. Vahey of Wilson Elser Moskowitz Edelman & Dicker, in Philadelphia.
Allegheny County Court of Common Pleas case GD-21-013488
U.S. District Court for the Western District of Pennsylvania 2:21-cv-01580
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com