Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 1 of 15
`
`The Honorable Barbara J. Rothstein
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
`
`
`Plaintiffs,
`
`Civil Action No. 2:21-cv-202-BJR
`
`
`ORDER GRANTING DEFENDANTS’
`MOTION FOR SUMMARY JUDGMENT
`
`
`DRAMMEH, et al.,
`
`
`
`
`
`
`UBER TECHNOLOGIES INC., et al.,
`
`
` Defendants.
`
`
`
`
`
`
`
`v.
`
`
`
`I.
`
`INTRODUCTION
`
`
`
`Plaintiffs Amie Drammeh and Yusuoha Ceesay, representing the estate of Cherno Ceesay
`
`(“Ceesay”) (collectively, “Plaintiffs”) filed this lawsuit against defendants Uber Technologies, Inc.
`
`(“Uber”) and Rasier LLC1 (together, “Defendants”) alleging that Defendants’ negligence caused
`
`the wrongful death of Ceesay, a driver for Uber who was killed by two passengers.2 Before the
`
`
`1 Plaintiffs’ complaint describes Rasier as “a wholly owned subsidiary of Uber Technologies and .
`. . the party that directly contracts with drivers.” Dkt. 1 ¶ 15. Neither party describes Rasier as
`separate from Uber in any legally relevant way.
`2 The two passengers have been charged but have not yet been tried. See Pl. Opp’n, Dkt. 123 at 7
`(stating that they are “awaiting trial”). However, for purposes of this order, the Court will assume
`the allegations against them are true.
`
`
`
`1
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 2 of 15
`
`Court is Defendants’ motion for summary judgment. Having reviewed the motion, the record of
`
`the case, and the relevant legal authorities, the Court will grant Defendants’ motion. The reasoning
`
`for the Court’s decision follows.
`
`A.
`
`Ceesay’s Murder
`
`II.
`
`BACKGROUND
`
`On the evening of December 13, 2020, Ceesay responded, using Uber’s smartphone app, to
`
`a call to pick up and ferry passengers in Issaquah, Washington. See Dkts. 129-1, 129-2. These
`
`passengers were Olivia Bebic and Devin Wade (hereinafter, the “Assailants)—nonparties dismissed
`
`from this action last year. Police Rpt., Dkt. 129-1 at PDF 4-7. The Assailants requested a ride
`
`through the app, and Ceesay accepted it. Id. The app notified Ceesay of the pick-up location the
`
`Assailants had entered. Id. Ceesay was found dead in his car minutes after he had at arrived at the
`
`pick-up location. Id. at PDF 6. Ceesay’s car had crashed into a tree about 100 feet from the pick-
`
`up location, and Ceesay had multiple stab wounds. Id. The Assailants had fled the scene. Id.
`
`An Issaquah Police investigation concluded that the Assailants created a fake Uber account,
`
`requested a ride, and murdered Ceesay in a botched carjacking. Id. at PDF 6-7. The allegedly fake
`
`account was registered under the name “Stephanie Tylor.”3 Def. MSJ, Dkt. 93 at 8 n.4. Defendants
`
`admit that this account was created and used to request a ride just before the attack on Ceesay. Id.
`
`When the account was created, Uber verified that the phone number used to register was in the
`
`account-holder’s possession (“SMS verification”) and verified that the account was attached to a
`
`valid payment method. Id. The Assailants used a prepaid cell phone and a prepaid gift card, both
`
`of which are anonymous in that they are not attached to a named account-holder. See Dkt. 129-13.
`
`
`3 An account under Bebic’s name was created about two hours before the Tylor account was created.
`Pl. Opp’n, Dkt. 123 at 5 n.16.
`
`
`
`2
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 3 of 15
`
`On the day after Ceesay’s murder, the Issaquah Police contacted Uber’s Law Enforcement
`
`Response Team seeking information about Ceesay’s passengers, and Uber identified the Tylor
`
`account as the last ride accepted by Ceesay. Pl. Opp’n, Dkt. 123 at 7 nn. 29-30. The police traced
`
`the phone to the Assailants, who were arrested on December 15, 2020. Police Rpt., Dkt. 129-1 at
`
`PDF 6-10; see also Dkt. 129-13. Based on interrogations and other information gathered about the
`
`Assailants, the police concluded that the two “stabbed [Ceesay] to death in the course of trying to
`
`steal his car.” Police Rpt., Dkt. 129-1 at PDF 4.
`
`B.
`
`The Uber App
`
`Uber’s ride-sharing service uses a smartphone app to connect available drivers with people
`
`requesting rides. Def. MSJ, Dkt. 93 at 3-4. Riders must create an account in order to request a ride.
`
`Id. at 4. Creating an account entails entering a name, email address, and cell phone number and
`
`agreeing to various terms and conditions. Id. As noted above, Uber employs SMS verification to
`
`confirm that someone is not attempting to create an account using a phone number that is not their
`
`own. Id. When a rider uses a phone number to set up an account, a text message containing a code
`
`is sent to that phone number, and the rider must then enter the code in the Uber app. Id. A particular
`
`phone number may only be used for a single account, “which limits [a] person from creating
`
`duplicate accounts.” Id. A particular rider is also prohibited from created multiple accounts using
`
`different phone numbers. Id.
`
`Uber uses an automated program called “Mastermind” to “assist in identifying potential risk
`
`and fraud.” Id. at 5. Although the exact means of identifying fraud are proprietary and technical,
`
`Uber states that Mastermind generally considers: (1) whether the account is similar to other
`
`accounts that have been used for fraud; (2) whether the account is similar to other accounts that
`
`have not yet been used for fraud but “show suspicious behavior or may be bots;” (3) “whether new
`
`users have ‘Uber,’ ‘Support,’ or certain other words in their account names which are correlated
`
`
`
`3
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 4 of 15
`
`with fraud.” Id. The Mastermind analysis of the information entered by the new user may result
`
`in them being prevented from creating an account. Id.
`
`Drivers also must create an account in the driver version of the app. Id. Creating a driver
`
`account entails more steps and more verification than a rider account. Drivers “(1) submit personal
`
`identifying information; (2) upload copies of a valid driver’s, proof of insurance, and vehicle
`
`registration; (3) pass a criminal background check (performed by a third-party) and a driving history
`
`check; (4) pass an examination testing [their] knowledge of risk factors for crimes against drivers;
`
`and (5) confirm their vehicle has passed a uniform vehicle safety inspection.” Id. at 5-6.
`
`Defendants note that some of the training and testing that Uber drivers undergo relates to potential
`
`risks to drivers’ safety. Id. at 6.
`
`C.
`
`Uber’s Relationship with Drivers
`
`The parties agree that, at least nominally, Uber drivers are independent contractors. Id. at
`
`7; Dkt. 15 ¶ 2. Defendants describe Uber drivers as having “sole control of the means and manner
`
`in which [they] provide[] transportation services and . . . complete discretion to determine the
`
`manner in which to operate [their] business.” Def. MSJ, Dkt. 93 at 7. Drivers use their personal
`
`vehicles and are solely responsible for maintenance and any physical safety measures they choose
`
`to implement. Id. Defendants also state that drivers control the routes they take to a passenger’s
`
`destination. Id.
`
`Plaintiffs’ characterization of Uber’s business implies more control over drivers. Plaintiffs
`
`note that drivers may only find customers through the Uber app, as Uber “forbids ‘street hails.’”
`
`Pl. Opp’n, Dkt. 123 at 10. In controlling the digital interface between drivers and riders, Uber
`
`controls and supplies “all information Drivers and Riders get about each other.” Id. (emphasis
`
`removed). From a driver’s perspective, it appears that this information is limited to the passenger’s
`
`provided name and pick-up location. Id.
`
`
`
`4
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 5 of 15
`
`Uber itself possesses some additional information about riders and uses this information to
`
`“verify” their accounts. Id. at 13. This verification essentially amounts to ensuring the account is
`
`not duplicative or obviously fraudulent and checking that the payment method is valid. Id.
`
`Plaintiffs claim that, in December 2020, a person could nevertheless create an account and order a
`
`ride “completely anonymously” and note that Uber did not require any kind of identity verification
`
`as long as payment can be authorized. Id. (emphasis removed). Uber did not have any mechanism
`
`for verifying that a person opening an account was using their real name, email address, or phone
`
`number, and riders could use a form of payment not attached to a bank account. Id. at 13-14.
`
`A.
`
`Summary Judgment
`
`III.
`
`LEGAL STANDARDS
`
`“The standard for summary judgment is familiar: ‘Summary judgment is appropriate when,
`
`viewing the evidence in the light most favorable to the nonmoving party, there is no genuine dispute
`
`as to any material fact.’” Zetwick v. County of Yolo, 850 F.3d 436, 440 (9th Cir. 2017) (quoting
`
`United States v. JP Morgan Chase Bank Account No. Ending 8215, 835 F.3d 1159, 1162 (9th Cir.
`
`2016)). A court’s function on summary judgment is not “to weigh the evidence and determine the
`
`truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty
`
`Lobby, Inc., 477 U.S. 242, 249 (1986). If there is not, summary judgment is warranted.
`
`B.
`
`Negligence
`
`A negligence claim requires (1) a duty of care, (2) a breach of that duty, (3) injury, and (4)
`
`actual and legal causation. Lauritzen v. Lauritzen, 74 Wash. App. 432, 438 (1994) (citing Hansen
`
`v. Friend, 118 Wash. 2d 476, 479 (1992)). The existence of a duty is a threshold question of law
`
`decided by the court. Id. Therefore, if the court finds the defendant did not have a duty of care,
`
`there is no issue of fact for a jury and summary judgment is appropriate. Id.
`
`
`
`5
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 6 of 15
`
`In this case, Plaintiffs must show that Defendants had a duty to protect them from the
`
`foreseeable criminal acts of a third party—namely, the Uber passengers who killed Ceesay. Under
`
`Washington law, “a private person does not have a duty to protect others from the criminal acts of
`
`third parties.” Hutchins v. 1001 Fourth Ave. Assocs., 116 Wash. 2d 217, 223 (1991). The parties
`
`generally agree that there are two relevant exceptions to this rule by which Plaintiffs might establish
`
`a duty of care.
`
`1.
`
`Special Relationship
`
`One exception applies when there is a “special relationship” between the parties that gives
`
`rise to a duty. Lauritzen, 74 Wash. App. at 438. This duty is triggered when “(1) the defendant has
`
`a special relationship with the third person that imposes a duty to control the person’s conduct; or
`
`(2) the defendant has a special relationship with the victim that gives the victim a right to
`
`protection.” HBH v. State, 192 Wash. 2d 154, 169 (2018). In some cases where the Washington
`
`Supreme Court has found a special relationship, it has emphasized the degree of control the
`
`defendant has over the aspect of the job that gave rise to the plaintiff’s injuries. E.g., Vargas v.
`
`Inland Washington, LLC, 194 Wash. 2d 720, 731-32 (2019) (“[W]hen a general contractor engages
`
`a subcontractor and ‘retains control over some part of the work,’ the general contractor ‘has a duty,
`
`within the scope of that control, to provide a safe place to work.’”). The court has also recognized
`
`a special relationship in situations where the victim is uniquely vulnerable and reliant on a
`
`defendant’s protection, such as children placed in foster homes by the state. HBH, 192 Wash. 2d
`
`at 173 (“[O]ur case law confirms that entrustment for the protection of a vulnerable victim, not
`
`physical custody, is the foundation of a special protective relationship.”). Other recognized special
`
`relationships include “a business and a business invitee, an innkeeper and a guest, state and a
`
`probationer, . . . a psychotherapist and a patient,” as well as a common carrier and its passengers
`
`and an employer and its employees. Id.; Robb v. Seattle, 176 Wash. 2d 427, 433 (2013).
`
`
`
`6
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 7 of 15
`
`2.
`
`Misfeasance
`
`The other relevant exception to the rule that there is no duty to protect against third-party
`
`criminal acts is a duty recognized “in the limited circumstances [where] the actor’s own affirmative
`
`act creates a recognizable high degree of risk of harm.” Robb, 176 Wash. 2d at 433. This narrow
`
`exception makes an important “distinction between an act and an omission.” Id. at 435. A negligent
`
`omission—or “nonfeasance”—is not enough to trigger a duty. Id. A defendant must affirmatively
`
`engage in a “misfeasance” that creates a situation in which a plaintiff is exposed to a high risk of
`
`harm to which they would otherwise not be exposed. Id. at 437.
`
`3.
`
`Foreseeability
`
`Plaintiffs must also establish that Ceesay’s murder was foreseeable as a matter of law. The
`
`Washington Supreme Court has “held that foreseeability can be a question of whether duty exists
`
`and also a question of whether the harm is within the scope of the duty owed. In the latter sense, it
`
`is a question of fact for the jury.” McKown v. Simon Property Grp., Inc., 182 Wash. 2d 752, 764
`
`(2015) (emphasis added). In the former sense, however, it is the Court’s responsibility to determine
`
`whether “the specific acts in question were foreseeable rather than whether the [defendant] should
`
`have anticipated any act from a broad array of possible criminal behavior.” Id. at 767. In other
`
`words, if a particular criminal act is not reasonably foreseeable based on prior similar acts, then
`
`there exists no duty to protect against it, and there is no occasion for a jury to decide the scope of
`
`the duty.
`
`IV. DISCUSSION
`
`Plaintiffs argue that a special relationship exists between Uber and its drivers. Pl. Opp’n,
`
`Dkt. 123 at 25. Plaintiffs claim that Uber “has sole and absolute control of whom Drivers are
`
`matched with—and then Uber heavily censors the information available to Drivers.” Id. at 29.
`
`Specifically, “Uber did not communicate to Mr. Ceesay . . . that (1) [Uber] had not verified the
`
`
`
`7
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 8 of 15
`
`rider’s identity, (2) the rider account had been opened just minutes before, and (3) the rider was
`
`using an anonymous payment method, which is associated with criminal intent.” Id. Finally,
`
`Plaintiffs argue that, even if a special relationship does not exist, they qualify for the misfeasance
`
`exception noted above. According to Plaintiffs, Defendants’ affirmative act of connecting Ceesay
`
`with the Assailants was a misfeasance that created a new risk of harm, and thus a duty of care. Id.
`
`at 34-37.
`
`Defendants contend that Plaintiffs’ special relationship cases are inapposite and do not
`
`warrant a further extension of the special relationship doctrine here. Def. Reply, Dkt. 139 at 6-7.
`
`Defendants also argue that Plaintiffs cannot succeed on a misfeasance theory, because they allege
`
`only omissions, not affirmative misconduct. Id. at 20-26. Finally, Defendants state that, whether
`
`or not the Court recognizes a special relationship or finds a misfeasance, the attack on Ceesay was
`
`“unforeseeable as a matter of law” and thus would not be included within any duty of care owed.
`
`Id. at 7, 15-19.
`
`A.
`
`Special Relationship
`
`Plaintiffs’ briefs lack a clear and concise statement of the special relationship they believe
`
`Uber has with its drivers.4 This is a tacit acknowledgement that none of the existing special
`
`relationships recognized in Washington fit this context, and any relationship recognized in this case
`
`would involve cobbling together elements of selective precedent. Almost all of the cases in which
`
`Washington courts have recognized a special relationship involved the physical custody or control
`
`of the premises on which a plaintiff was injured—for example, hotels, stores, schools, and hospitals.
`
`In asking the Court to find a duty here, Plaintiffs ask the Court to announce a corollary to the typical
`
`boundaries of the special relationship doctrine, which is itself an exception to the general rule that
`
`
`4 Plaintiffs do not allege that Ceesay was an employee or that Uber is a common carrier.
`
`
`
`8
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 9 of 15
`
`private persons do not have a duty to protect others from third-party criminal conduct. Federal
`
`courts sitting in diversity jurisdiction and applying state law are “reticent to formulate any common-
`
`law ‘special relationship’ not previously recognized” without “clear Washington authority.”
`
`Buckley v. Santander Consumer USA, Inc., 2018 WL 1532671, at *6 (W.D. Wash. Mar. 29, 2018)
`
`(noting that it would be inappropriate for a federal court to venture into “uncharted waters” without
`
`clear guidance).
`
`Plaintiffs cite only one case in which Washington courts found a special relationship outside
`
`of premises liability. In HBH, the Washington Supreme Court held that the state had a duty to
`
`protect foster children from abuse when it placed them in foster homes that were outside of the
`
`state’s physical custody. HBH, 192 Wash. 2d at 173. Although Plaintiffs cite HBH for the principle
`
`that Washington courts may find special relationships even in the absence of physical custody,
`
`numerous other aspects of that case nevertheless counsel against finding one in this case. The
`
`central holding in HBH was that “entrustment for the protection of a vulnerable victim, not physical
`
`custody, is the foundation of a special protective relationship.” Id. The state foster care agency’s
`
`lack of physical custody was outweighed by the vulnerability of the victims and the responsibility
`
`with which the state had been entrusted, such that it was essentially the equivalent of physical
`
`control. See id. at 173-74 (agreeing with U.S. Supreme Court that foster care is analogous to
`
`incarceration or institutionalization). HBH thus illustrates that the Washington Supreme Court is
`
`willing to recognize special relationships outside of premises liability, but it also suggests it will
`
`only do so in exceptional cases. It is unlikely the court would consider this case exceptional. Uber
`
`drivers are clearly not as vulnerable as foster children, and providing drivers with the location of a
`
`passenger and processing a payment is not equivalent to a state foster care agency that “controls
`
`the placement of [a] child, determines the child welfare services to be provided, and decides when
`
`
`
`9
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 10 of 15
`
`the child will be removed from a foster home.” Id. at 174. It is also not equivalent to the second
`
`case Plaintiffs cite, in which the court found that an elderly group home had a responsibility to
`
`protect “[p]rofoundly disabled persons that are totally unable to protect themselves and are thus
`
`completely dependent on their caregivers for their personal safety.” Niece, 131 Wash. 2d at 46.
`
`The third and final case Plaintiffs cite to support their special relationship theory is Vargas,
`
`in which the Washington Supreme Court found a general contractor had a duty to a subcontractor,
`
`despite the fact that the latter was not an employee. See Vargas, LLC, 194 Wash. 2d at 731-33.
`
`Vargas did not involve a “highly vulnerable” victim as in Plaintiffs’ other cases, but it is
`
`inapplicable for other reasons. First, as Defendants observe, “[e]very case that has cited the relevant
`
`duty language in Vargas has done so in the narrow context of [a] general contractor’s duty to
`
`maintain a safe worksite.”5 Def. Reply, Dkt. 139 at 3 n.2 (citing cases). The crux of Vargas was
`
`that the defendant general contractor “supervised the jobsite and had a right to exercise control over
`
`the work of the various entities on the jobsite,” where the plaintiff was injured by a malfunctioning
`
`hose. Id. at 734. See Vargas, LLC, 194 Wash. 2d at 731-33. Plaintiffs do not allege Uber
`
`“supervised” any aspect of Ceesay’s transportation of passengers. Additionally, the place in which
`
`Ceesay was attacked—his car—was not a “worksite” over which Uber “retained” control. Even if
`
`Uber had provided the car to Ceesay, it could not control Ceesay’s safety in the same way a general
`
`contractor can control a tract of private property. Given the constantly changing nature of a car’s
`
`environment and passengers, it is not analogous to a worksite.
`
`In summary, this Court finds that Uber’s role is not sufficiently supervisory to impose on it
`
`the degree of responsibility that a special relationship requires. The distinctions between this case
`
`
`5 Defendants also note that “[t]he Vargas decision dealt with the ‘expansive statutory and common
`law duties’ that general contractors have ‘to provide a safe workplace’” and that no such parallel
`exists here. Def. Reply, Dkt. 139 at 5 (citing Vargas, 194 Wash. 2d at 722-23).
`
`
`
`10
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 11 of 15
`
`and those cited by Plaintiffs are simply too many and too stark for the Court to venture into
`
`“uncharted waters” and recognize a special relationship between Uber and its drivers. Accordingly,
`
`the Court finds that Plaintiffs cannot establish duty on this basis.
`
`1.
`
`Misfeasance
`
`Plaintiffs’ alternative theory of duty is that it was Defendants’ affirmative misfeasance that
`
`created the circumstances that enabled the Assailants to murder Ceesay. Pl. Opp’n, Dkt. 123 at 34.
`
`The misfeasance identified by Plaintiffs includes “Uber’s allowing [the Assailants] on the Uber
`
`platform using a gift card without requiring ID verification, its failure to give Mr. Ceesay the means
`
`to identify such risky riders, and its failure to provide, require or even encourage Mr. Ceesay to use
`
`a dashcam integrated with the Uber app.” Id. at 35. Plaintiffs suggest that, even if these are viewed
`
`individually as omissions, the appropriate question is “whether the actor’s entire conduct created a
`
`risk of harm.”6 Id. at 34 (quoting Restatement (Third) of Torts: Physical and Emotional Harms §
`
`37 cmt. (c)) (emphasis omitted).
`
`Plaintiffs may be correct that certain omissions can amount to misfeasance if they create a
`
`risk of harm that would otherwise not exist. The Washington Supreme Court has stated in dicta
`
`that “[a] driver affirmatively create[s] a new risk to a pedestrian by failing to stop his or her car [at
`
`a crosswalk].” Robb, 176 Wash. 2d at 437. However, none of the omissions identified by Plaintiffs
`
`created the risk that resulted in Ceesay’s death. Plaintiffs’ own statistics show that carjacking is a
`
`broad societal problem. See Pl. Opp’n, Dkt. 123 at 20. There is no evidence or allegation that
`
`anything Defendants did actively encouraged carjackings or “create[d] a special or particular
`
`temptation or opportunity for crime.” Hutchins, 116 Wash. 2d at 232-33; see also Jane Doe 1 v.
`
`
`6 Defendants note that Washington has not adopted the Third Restatement or the concept cited by
`Plaintiffs. Pl. Opp’n, Dkt. 123 at 23-24.
`
`
`
`11
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 12 of 15
`
`Uber Techs., Inc., 79 Cal. App. 5th 410, 425 (finding Uber did not engage in misfeasance and
`
`contrasting a case in which a “plaintiff was injured by third parties doing exactly what defendant’s
`
`conduct encouraged them to do” (emphasis added)). Even if it were conclusively shown at trial
`
`that the risk of carjackings would have been reduced if Defendants had implemented the measures
`
`demanded by Plaintiffs, it still would not follow that Defendants created the risk. Washington
`
`courts have rejected the idea that “the failure to take [preventative measures] against crime is not
`
`in and of itself a special temptation to crime.” Sourakli v. Kyriakos, Inc. 144 Wash. App. 501
`
`(2008).
`
`The Court agrees with Defendants that Plaintiffs’ claims are properly understood as alleging
`
`that Defendants “failed to eliminate a risk.” Def. Reply, Dkt. 139 at 20. Washington courts have
`
`been clear that a failure to eliminate a preexisting risk does not itself create a duty of care. Robb,
`
`176 Wash. 2d at 439 (noting the “firm line between misfeasance and nonfeasance”). Furthermore,
`
`the Washington Supreme Court has found misfeasance as a basis for duty only once. See Washburn
`
`v. City of Federal Way, 178 Wash. 2d 732 (2013) (police officer knew or should have known that
`
`third party would react violently to service of restraining order). It is obvious that Washington
`
`courts view this doctrine as applicable only in exceptionally compelling circumstances, and those
`
`are not present here. Accordingly, the Court finds that Plaintiffs cannot establish duty based on a
`
`misfeasance.
`
`2.
`
`Foreseeability
`
`The Court also finds that Plaintiffs have not established that the attempted carjacking and
`
`murder of Ceesay was a foreseeable result of Uber’s connecting the “Stephanie Tylor” rider account
`
`with Ceesay via the Uber app. Plaintiffs purported evidence of foreseeability is that Defendant
`
`knew that fraudulent, duplicate, and anonymous accounts were correlated with “criminal intent.”
`
`See Pl. Opp’n, Dkt. 123 at 33. Plaintiffs also point to some evidence that carjacking, specifically,
`
`
`
`12
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 13 of 15
`
`is connected to this type of suspicious activity. However, aside from generalized statistical data
`
`and expert testimony about the increased frequency of carjackings, the vast majority of Plaintiffs’
`
`evidence originated after Ceesay’s murder in December 2020. Plaintiffs rely heavily on an “early
`
`2021” internal report called “Responding to Carjacking” and an April 2021 blog post describing a
`
`new ID verification requirement that Plaintiffs say would have prevented the Assailants from
`
`requesting a ride.7 See id.
`
`Federal Rule of Evidence 407 bars evidence of subsequent remedial measures when offered
`
`to prove negligence. Fed. R. Evid. 407. Plaintiffs do not deny that the documents they rely on
`
`constitute subsequent remedial measures but claim that they are proffering them for a purpose
`
`outside the scope of the rule. Plaintiffs cite an advisory committee note stating that evidence of
`
`remedial measures is admissible to show “existence of duty.” Pl. Opp’n, Dkt. 123 n.189 (citing
`
`Advisory Committee Notes to 1972 Proposed Rule, Fed. R. Evid. 407). It is not clear what the
`
`Advisory Committee intended by that comment, but Defendants correctly observe that the Ninth
`
`Circuit has interpreted Rule 407 as prohibiting subsequent remedial measures as evidence of “what
`
`was knowable” prior to the plaintiff’s injury or more broadly to establish a “duty to warn.” Def.
`
`Reply, Dkt. 139 at 10-12 (citing Rosa v. Taser Int’l, Inc., 684 F.3d 941, 948 (9th Cir. 2012).
`
`Plaintiffs are clearly offering the post-incident reports to prove that Uber knew or should have
`
`known of the carjacking risk and that Ceesay’s murder was foreseeable based on this knowledge.
`
`Plaintiffs make no argument as to why Rosa should not apply. “In examining whether summary
`
`judgment is appropriate, [courts] ‘consider only alleged facts that would be admissible in evidence
`
`
`7 Plaintiffs’ surreply cites additional documents that allegedly show Uber had “[p]rior knowledge
`of the risks to drivers of anonymous payment methods of payment,” but many if not all of these
`documents also appear to have originated after Ceesay’s murder. Pl. Surreply, Dkt. 148; see, e.g.,
`Dkts. 149-1, 149-2; see also Def. Surreply, Dkt. 162 (Defendants’ surreply noting that all
`documents were created in 2021).
`
`
`
`13
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 14 of 15
`
`[at trial].’” Rosa, 684 F.3d at 948 (quoting Filco v. Amana Refrigeration, Inc., 709 F.2d 1257, 1260
`
`(9th Cir. 1983)). Plaintiffs’ post-incident evidence would be inadmissible as evidence, and thus the
`
`Court will not consider it here.
`
`Plaintiffs’ remaining, pre-December 2020 evidence is largely comprised of internal incident
`
`reports maintained by Uber (called “JIRA tickets”) and collated by Plaintiffs. See Pl. Opp’n, Dkt.
`
`123 at 15; Dkt. 129-61. Plaintiffs claim that the “JIRA data shows that beginning in the second
`
`quarter of 2020 after the start of the pandemic, there was a staggering increase in the rate of
`
`carjackings.” Pl. Opp’n, Dkt. 123 at 39. However, based on the record, the JIRA data does not
`
`suggest a statistically significant connection between fake or anonymous accounts and carjacking,
`
`nor do Plaintiff’s experts’ opinions support that connection. One of Plaintiffs’ experts, who has
`
`experience in the “payments industry” but not specifically with Uber, opined that “anti-money
`
`laundering professionals and law enforcement personnel have known for years that prepaid/gift
`
`cards and other anonymous forms of payment are the payment method of choice of criminal
`
`elements, including (for example) those involved in human trafficking and drug trafficking.”
`
`Corrigan Decl., Dkt. 124 ¶ 6. There is no further evidence to support an inference that the same
`
`applies to carjacking.
`
` Without this evidence, there is no link between anonymous accounts like the “Stephanie
`
`Tylor” account and carjackings, let alone murder. Plaintiffs’ statistical evidence may show Uber
`
`was aware of an increase in carjackings in 2020, but that does not mean a carjacking was foreseeable
`
`in this case. Kim v. Budget Rent A Car Sys., Inc., 143 Wash. 2d 190, 199 (2001) (Washington
`
`Supreme Court “has rejected utilization of high crime rates as a basis for imposing a tort duty”).
`
`To establish a legal duty, Plaintiffs were required to show that it was foreseeable the Assailants
`
`would use the Uber app to commit a carjacking and murder Ceesay. See McKown, 182 Wash. at
`
`
`
`14
`
`1
`2
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`
`
`
`
`
`

`

`
`
`Case 2:21-cv-00202-BJR Document 165 Filed 09/27/22 Page 15 of 15
`
`767. Legal foreseeability is based on whether the specific acts in question were foreseeable rather
`
`than whether Defendants should have anticipated any act from a broad array of possible criminal
`
`behavior. Id. The Court finds that Plaintiffs have failed to establish that the sequence of events
`
`leading to Ceesay’s death was foreseeable. Further, the Court finds that Plaintiffs have failed to
`
`establish that Defendants had a duty of care. Because Plaintiffs have failed to establish these
`
`threshold elements, they cannot make out a claim for negligence, and summary judgment is
`
`appropriate.
`
`IV. CONCLUSION
`
` For these reasons, Defendants’ motion for summary judgment (Dkt. 93) is GRANTED, and
`
`Plaintiffs’ claims are dismissed. Plaintiffs’ motions to seal several of their filings