Inset: Georgia and John McGinty. Background: The aftermath of the car crash involving an Uber driver (photos used with permission).
A New Jersey couple injured in a car crash during an Uber ride are not being allowed to sue the ride-hailing company because their minor daughter once used Uber Eats, the family’s attorneys told Law&Crime.
On March 31, 2022, Georgia and John McGinty “were rear seat passengers in a vehicle” operated by an Uber driver who “ran a red light and t-boned” another vehicle, a recent court decision explains.
As a result of the crash, the wife sustained cervical and lumbar spine fractures, rib fractures, a protruding hernia, injuries to her abdominal wall, pelvic floor, and other physical injuries, requiring numerous surgeries, the court decision explains. The husband sustained a fractured sternum and severe fractures to his left arm and wrist, required a bone graft, and now has diminished use of his left wrist.
In February 2023, the McGintys filed a lawsuit naming various defendants. Months later, Uber filed a motion to compel arbitration. Last week, a Garden State appeals court ruled in the company’s favor.
“We hold that the arbitration provision contained in the agreement under review, which Georgia or her minor daughter, while using her cell phone agreed to, is valid and enforceable,” the Superior Court of New Jersey, Appellate Division, wrote in a Sept. 20, per curiam opinion.
At the heart of the dispute are Uber’s terms of use — which were revised in December 2021 — and who, exactly, signaled their understanding of, and consent to, those revised terms.
“Uber’s app was designed so that a user — such as Georgia — could not continue using the account to access Uber’s services unless and until the updated Terms of Use were agreed to,” the court explains.
The family argued the wife — who downloaded the app in 2015 — was not who agreed to the operative terms on Jan. 8, 2022. Rather, the McGintys said, their minor daughter logged in on her mother’s phone, ticked the relevant check box, and pressed the “Confirm” button.
The court sums up the argument between the parties:
In opposition, plaintiffs asserted they had no recollection of seeing the purported “clickbox” on January 8, 2022, and surmise it was clicked by their daughter while they packed for an upcoming ski trip. At approximately 6:15 p.m. that evening, plaintiffs recalled their daughter asked if they could order food from a particular restaurant. However, plaintiffs did not remember if their daughter ordered food independently or if Georgia assisted, but both recall their daughter hanging on to Georgia’s cell phone after the order was placed to monitor the progress of the delivery.
Uber contends the “Checkbox Consent” was activated when plaintiffs’ daughter was getting updates on the driver’s progress because the application was refreshed. After they finished eating, Georgia certified that she got her cell phone back and tipped the driver. Georgia argued she and John never had the opportunity to see the pop-up, and it was their daughter who intentionally or unintentionally clicked on it while monitoring the delivery.
In the end, the court determined that Georgia McGinty “agreed” to the arbitration terms in question “either by herself or through her daughter using her Uber account.”
“Georgia certified that her daughter was ‘capable,’ would frequently order food, and she and John were preoccupied with packing, which supports the inference that the daughter acted knowingly on Georgia’s behalf,” the court’s opinion continues. “In summary, the Arbitration Agreement is valid and delegates the threshold question of the scope of the arbitration to the arbitrator. Therefore, Georgia’s reliance on her daughter’s minority to raise an infancy defense shall be determined by the arbitrator.”
The McGintys are now raising the alarm over such arbitration agreements.
“We are horrified at what the court’s decision suggests: A large corporation like Uber can avoid being sued in a court of law by injured consumers because of contractual language buried in a dozen-page-long user agreement concerning services unrelated to the one that caused the consumers’ injuries,” the family told Law&Crime. “Here, the content, format, and presentation — dozens of pages on an iPhone screen during a food delivery order — make it impossible that anyone could understand what rights they were potentially waiving or how drastic the consequences could be.”
In a statement to Law&Crime, Uber reiterated that “the court concluded that on multiple occasions the plaintiff herself — not her teenage daughter — agreed to Uber’s Terms of Use, including the arbitration agreement.”
The McGintys’ attorneys suggested their legal battle was not yet over — telling Law&Crime they were reviewing the decision and would likely appeal with a petition to the Supreme Court of New Jersey.
“First, this is yet another arbitration clause that looks to have an infinite reach — this agreement was allegedly consented to months prior to the tragic motor vehicle collision when the McGintys, really their minor daughter, were placing a food delivery order,” the law firm of Stark and Stark said in a statement. “Second, it is yet another example of the erosion of consumer protections and rights.”
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