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 denied the driver’s counter-allegations that the plaintiff and his friends were attempting to carjack him.
Phillip Pesano of Carnegie first filed suit in the Allegheny County Court of Common Pleas on Nov. 2, 2021 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, 2021, 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.
UPDATE
On Nov. 14, the driver, defendant Farkosh, answered the complaint with a claim that he did not use unlawful force against the plaintiff, but rather, defended himself with a lawfully-possessed weapon when the plaintiff and his friends were attempting to carjack him.
He also explained that he was currently on active duty in the U.S. Navy, residing in Connecticut and about to be relocated – and reassigned liability for the incident to Uber through a cross-claim.
“Plaintiff and his companions threatened to physically harm defendant Farkosh with a knife, forced him out of his vehicle, assaulted him and attempted to carjack his vehicle, prompting defendant Farkosh to summon the police. In further response, defendant Farkosh did not have a duty to inform plaintiff that he was carrying a licensed firearm,” Farkosh’s answer stated.
“Plaintiff and his companions threatened to physically harm defendant Farkosh. Plaintiff and his companions assaulted defendant Farkosh. Plaintiff and his companions attempted to carjack defendant Farkosh’s vehicle. Defendant Farkosh discharged his licensed firearm in an effort to protect himself against the use of unlawful force by Mr. Pesano. Defendant Farkosh’s discharge of his weapon was a justifiable act of self-defense. Plaintiff’s claims are barred and/or limited by applicable local, state and/or federal law.”
In a Nov. 21 reply, Pesano denied that he and his friends threatened to harm Farkosh, assaulted him or attempted to carjack him.
“It is denied that plaintiff was using unlawful force against defendant Farkosh. On the contrary, defendant Farkosh pursued plaintiff on foot for an extended period of time and ultimately fired a gun at plaintiff, who was not in possession of any weapons,” the reply stated.
Uber similarly denied liability for Farkosh’s cross-claims in a Dec. 2 answer.
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, plus Edward A. Yurcon of Walsh Barnes & Zumpella, in Pittsburgh.
Allegheny County Court of Common Pleas case GD-21-013488
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com