Emily Wu accepted Uber’s new terms of service in January without thinking much about it.
The Brooklyn woman didn’t realize that the seemingly routine click on her phone would be used by the ride-share company in a bid to torpedo her ongoing lawsuit against the firm.
In November, the 23-year-old college student filed suit against the tech giant arguing she was hit and seriously injured by another car because her driver failed to let her out at a safe location near the sidewalk.
“I was trying to look both ways when I came out,” she recalled of the incident by her apartment in Bensonhurst on July 25, 2020.
The driver of the SUV that hit her stayed on the scene. It does not appear that he was ticketed, according to the police report, which says Wu “possibly” came out between two double parked cars before she was hit on West 6th Street.
The next thing she remembers was waking up on the street surrounded by people and an ambulance at the spot by West 6th Street, near Avenue O.
“All I saw was blood coming out of my mouth, it was all over my hands,” she recalled, noting the majority of her front teeth were knocked out. She said she also had “road rash” over large parts of her body.
Wu, who is studying to be a nurse, has since undergone surgery to repair a torn meniscus in her right knee and two operations to reconstruct her gums to install dental implants, according to court papers.
‘I Just Clicked Through’
Four months after the accident, she filed a lawsuit against Uber in Bronx Supreme Court, alleging her Uber driver, who lives in that borough, unsafely dropped her off in the middle of the street where she “could not access the curb.”
She avoided using the ride sharing app right after the accident and mostly got rides from friends and family members to multiple doctor visits, Wu told THE CITY.
She also used Lyft, but eventually logged back into Uber.
On Jan. 15, approximately two months after the lawsuit was filed, the Uber app updated its terms and conditions. Like most people, Wu accepted them without reading the fine print.
Among other things, the new rules asserted that users retroactively waive their rights to a trial and instead must bring all disputes before an arbitrator, according to Uber lawyers.
“I think they sent me an email but I didn’t really read it,” she said. “Nobody does. I just clicked through.”
She was “shocked” to later find out Uber was trying to use that to block her case from going in front of a jury.
Uber did not respond to a request via email seeking comment.
On Wednesday, Wu’s lawyer, Josh Kelner, filed court papers arguing it would be unfair to have the case suddenly downshifted from Bronx court to arbitration.
“Uber should be sanctioned for attempting this remarkable end run around a represented party’s attorneys in a pending action,” said the legal filing, first reported by the Daily News.
Arbitration cases sometimes result in lower payouts and can’t be appealed unless there’s an egregious mistake that can be brought before a court.
“Arbitrators on the whole award less money and are seen as more favorable to serve the corporate interests that are their repeat customers,” said Kelner. “And it’s not true of every single arbitrator, obviously, but on the whole The reason they want to be in arbitration is because juries are fairer to individuals than arbitrators are.”
Arbitration cases are also handled behind closed doors.
“The public has an interest in knowing when people are injured or aggrieved as a result of a company’s alleged conduct and it only serves the communities to have those grievances within the public sphere,” Bryant Greening, attorney and co-founder LegalRideShare, a personal injury law firm that represents drivers and passengers in gig-related incidents.
Kelner is urging city officials who oversee the tech giant to implement better customer protections.
“It’s predatory,” he said. “It’s a company trying to victimize its users, by leveraging the imbalance in legal knowledge between the company which is armed with lawyers, and Emily Wu, who is just trying to click through a button to get a taxi.”
The city’s Taxi & Limousine Commission, which regulates for-hire vehicles, has to “balance” oversight and regulations on companies like Uber, said Jonathan Peters, a professor of finance and data analytics at CUNY’s College of Staten Island.
Uber’s updated terms of service “seems rather questionable in my book,” he added. “You don’t want to turn this into the Wild West. You want reasonable protections for the public.”
But it makes no sense to enact rules that don’t have any meaningful purpose, said Peters, noting yellow cab medallion owners have backed stricter rules for Uber to block its expansion.
“Some people want regulation to protect their interest — that can create a barrier to entry for these new transportation options,” Peters said.
Seeking a ‘Safe Location’
The number of for-hire rides in the city each day has exploded over the past few years, from roughly 500,000 trips a day in 2015 to approximately 950,000 rides a day after COVID hit in the spring, according to the TLC. It is currently around 470,000 rides a day.
It is unclear if Uber’s new rules will stick in court.
In January, Massachusetts highest court tossed Uber’s move to push a blind man’s discrimination case to arbitration. The Massachusetts Supreme Judicial Court concluded the terms of condition didn’t apply in part because few people read and understand them. Christopher Kauders sued after he was denied service three times in 2015 and 2016 because he wanted to bring his guide dog on an Uber ride.
The ride sharing app has also tried, with mixed results, to force its drivers into arbitration and argued against them from being granted class action status.
As for Wu, she’s hoping her suit will help other riders.
“Drivers should always drop you off at a safe location,” she said, “not where you could get hurt. And they should be liable if something happens.”