PITTSBURGH – A Western Pennsylvania man who said he and his friends were nearly killed by their Uber driver when the driver ordered them all out of the vehicle, chased them and discharged a firearm very close to the plaintiff’s head, has countered Uber’s denials of liability in his case.
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.
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.
Plaintiff counsel filed an answer and opposing brief to the company’s preliminary objections on March 8.
“It is necessary for discovery to be done in this case in order to address many of the factual issues that have been raised in Uber’s preliminary objections, including, but not limited to, all hiring practices by Uber of its drivers, the background checks that are done and how often they are performed with respect to drivers, the implementation and enforcement of policies involving weapons carried by Uber drivers, the policies and procedures with respect to Uber drivers identifying passengers in the vehicles and a number of other matters that are relevant to the claims that have been asserted in this case,” the brief stated.
“Much of Uber’s assignment related to vicarious liability. Though plaintiff continues to assert that Farkosh was an employee of Uber at all times relevant hereto, and, as such, can be vicariously liable for Farkosh’s actions, it cannot be overemphasized that many of the allegations against Uber in the complaint are allegations of direct negligence in connection with its negligent hiring, supervision, policy implementation and enforcement, and other matters as well.”
On March 18, Allegheny County Court of Common Pleas Judge John T. McVay Jr. overruled the company’s objections.
Subsequent to their denial of preliminary objections, Uber answered the complaint on May 3 and essentially denied the plaintiff’s allegations in their entirety, referring to them as nothing more than conclusions of law to which no response was required and strict proof of which was demanded at trial.
In new matter, Uber offered a number of affirmative statements in its own defense.
“The plaintiff’s complaint fails to state a claim upon which relief may be granted. Answering defendant owed no duty to plaintiff. Answering defendant breached no duty owed to plaintiff. Answering defendant did not cause the damages alleged by plaintiff. Plaintiff failed to mitigate the damages. The claims raised in plaintiff’s complaint are barred and/or limited by the applicable statute of limitations. Answering defendant is entitled to a reduction of any found liability by the direct proportion of plaintiff’s comparative fault or negligence and/or by the amount of liability attributed to all defendants and other persons whom liability is apportioned, pursuant to the Pennsylvania Fair Share Act,” the new matter stated.
“Plaintiff’s claims are barred and/or limited by the Pennsylvania Comparative Negligence Statute. Plaintiff’s claims are barred and/or limited by the doctrines of laches, waiver and/or estoppel. No acts of omission or commission, on the part of answering defendant, caused the injuries described in plaintiff’s complaint. The injuries alleged in plaintiff’s complaint were caused by the negligence, recklessness and/or criminal actions of third-parties over whom answering defendant exercises no control. The injuries alleged in plaintiff’s complaint were caused by the negligence, recklessness and/or criminal actions of plaintiff.”
The new matter continued that the plaintiff’s injuries were barred by his own negligence per se, were caused by superseding and/or intervening actions of a third-party over whom answering defendant had no control, were caused by his own superseding and/or intervening actions, were not caused by the actions of an agent, workmen, servant and/or employee of answering defendant working in the course and scope of his/her employment and are barred and/or limited by the applicable local, state and/or federal law.
Further, Uber asserted cross-claims for all liability in this case against its co-defendant Farkosh.
UPDATE
On June 8, Pesano replied to Uber’s new matter, denying it in its entirety.
“Paragraphs 28-32 contains conclusions of law to which no reply is required. In the event a reply is necessary, said paragraphs are denied as defendant Uber owed a duty to plaintiff and the allegations contained in plaintiff’s complaint are incorporated herein,” the plaintiff’s response stated.
The response adds that the plaintiff timely filed the suit and thus, the claims are not barred or limited by the applicable statute of limitations, plaintiff’s claims are not barred or otherwise limited by the doctrines of laches, waiver or estoppel, that Uber did in fact cause the injuries contained in the plaintiff’s complaint, that Uber has failed to identify third-parties who engaged in negligent, reckless and criminal actions, and that defendant Farkosh was indeed under Uber’s control and supervision.
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
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com