If you haven’t seen the video, it is very disturbing on so many levels. First off a two-year-old is run over by an Uber driver who had just dropped a family off at an apartment complex. Then a bunch of people assault the Uber driver. This raises the questions of what are the legal ramifications and who is liable? In this case, there are questions of both civil and criminal liability.
Background: Uber Driver Runs Over Toddler
When you watch the video, what you see is two people exiting the Uber from the left side and walking toward the camera between some parked cars to the sidewalk. Then you see a third person exit the right side of the vehicle and then walk around the front of the car and follow the other two. About this time a toddler walks around the front of the car. The height of the toddle is such that her head does not stick up above the hood of the car significantly if at all. As a result, it appears as though the Uber driver assumes the toddler was with the other people who are all at least 10-20 feet from the vehicle now. The Uber driver proceeds to try to leave and runs the toddler over. The toddler was taken to the hospital but tragically did not survive.
The next thing you see in the video is one of the family is looking at the child and then yelling at the driver. Another (young a girl) returns to the car and starts to hit the Uber driver. The one who was yelling joins in and then two adult males emerge and join in the attack until the Uber driver slips free from his car and retreats off-camera.
Criminal Liability of the Uber Driver in the Uber Assault Case
I would not expect any criminal charges to be brought against the Uber driver in this case after watching the video. There is no clear evidence that the driver acted with intent to injure the toddler. It appears that he was simply leaving and did not see the toddler. If evidence that he intentionally hit the toddler was present, he would be looking at a murder charge.
Criminal Liability of the Parents
In an incident where a toddler is killed, people are often quick to ask about the parent’s responsibility. Where were the parents/guardians? While the relationship of the adults who rode in the Uber to the toddler is not entirely clear, any adult, parent or otherwise, who was entrusted with the child’s welfare for the trip could be charged with criminally negligent homicide or manslaughter if the investigators determine that the evidence supports that they caused the death of the child by way of criminal negligence or recklessly caused the child death. These charges are both felony charges that can result in substantial jail time. A person acts with criminal negligence when he/she ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur.
Criminal Liability For Attacking an Uber Driver
In this case, what appears to be at least 4 different family members and/or friends of the toddler physically struck the Uber driver with closed fists. These individuals are likely to be charged with criminal assault which is a class A misdemeanor unless they they cause serious bodily injury. If the assault causes serious bodily injury, it is an aggravated assault which is a third-degree felony. A class A misdemeanor is punishable in Texas by up to 1 year in jail and a $4,000 fine. A third-degree felony is punishable by a minimum of 2 years and up to 10 years in jail. We do not see the Uber driver’s condition after the attack.
Undoubtedly, the family members will plead there are special circumstances here. They may assert that they were distraught enough to cause temporary insanity. Another possible line of defense in Texas is to argue that you were coming to the aid of another in self-defense. However, it does not appear that at the time the assault began, the driver was taking further actions to harm the child. Unless he was attempting to drive off when they assaulted him this might be a difficult defense.
Civil Personal Injury Liability of the Uber Driver Who Killed the Toddler
From a civil standpoint, this case is just as complex. First and foremost, there is a potential wrongful death claim against the Uber driver. Second, there is a possibility of civil liability by the family to the Uber driver for intentional assault.
The Wrongful Death Lawsuit
In Texas, when someone negligently causes the death of another person, that person’s estate and certain persons designated by statute have the right to bring a wrongful death lawsuit. Those people are called the wrongful death beneficiaries and they typically include the mother, father, the spouse (if they have one), and any children of the deceased. It does not include grandparents, uncles, aunts, brothers, or sisters—these folks have no right to bring a wrongful death claim. In this case, the toddler had no spouse or kids, so the only beneficiaries were the parents.
Contributory Negligence
When the wrongful death lawyer hired by the parents of the deceased and the Estate file a lawsuit against the Uber driver, the Uber driver will likely designate the parents as responsible third parties and ask the judge to allow the jury to apportion liability for the failure of parental supervision. What makes this case rather interesting is that typically, the deceased’s comparative negligence would be considered by the jury. However, in Texas, a child under 5 cannot be negligent as a matter of law. Thus, while the Uber driver may be able to reduce or even eliminate the parent’s ability to recover their personal claims by asserting their contributory negligence was over 50% of the cause, they cannot use this to reduce the percentage of responsibility they have for the deceased’s estate’s claims. Things like the child’s pain and suffering belong to the estate whereas the right to recover medical expenses belongs to the parents. What percentage of responsibility the parents have, if any, will have to be decided by a jury if no prior settlement can be reached.
Uber and Civil Liability
The negligence of an employee of a company can be imputed to the company via vicarious liability. However, Uber drivers in Texas are not considered employees. They are independent contractors.
Uber Insurance
Another issue that may need to be addressed by an Uber accident lawyer in Houston is how much insurance coverage applies. Rideshare companies have unique insurance policies that change limits based on what the driver is doing at the time. If he is assigned to a passenger when the incident occurs there is one million dollars in coverage. However, in this case, the driver had just dropped off a family. Had he been assigned to another fare yet? We do not know the answer at this time.
If the driver has not been assigned to a fare yet but is logged in awaiting an assignment, then he only has $50,000.00 per person in bodily injury insurance coverage with a maximum total coverage of $100,000 per accident when there are multiple injured parties. Because all of the claims in this case are considered derivative of one individual’s physical injury there is only one “person” for coverage purposes. If the driver switched to off-duty after he dropped the family off, then the Uber policy disappears and his own personal liability policy (if he has one) applies. In Texas, the minimum required for a personal policy is $30,000.00.
Civil Personal Injury Liability of the Faily to the Uber Driver
After the toddler is struck by the Uber driver, he stops the car. Shortly thereafter, he is physically assaulted by at least 4 people. Although close in proximity and time to the toddler’s demise, civil law treats the assault as a separate event. The Uber driver has the right to sue all persons who assaulted him for the physical injuries, damages, and trauma they caused him. In Texas, the cause of action would be the intentional tort of assault. To prevail, he must show that they knowingly physically touched him causing bodily injury with the intent of doing so.
The Intentional Tort Problem
In Texas, you have the right to bring a lawsuit for an intentional tort. However, most personal injury lawyers will not take the case. The problem with intentional torts is that they are excluded from coverage by liability insurance policies such as auto policies, homeowner policies, and renter’s insurance policies. So, to collect on a judgment, you have to pursue the individual. The Texas Homestead Act and Federal Bankruptcy laws make it very difficult to collect against an individual unless he owns significant assets outright or has cash on hand above $60,000.00.
However, another thing that makes this case uniquely interesting is that it may not have the same intentional tort problem as most assault cases. If the persons committing the assault were the wrongful death beneficiaries of the minor, then there is an expectation that they will be receiving money from any judgment they take. If the policy is $1,000,000.00, then they very well could receive enough money to justify a personal injury attorney in filing a lawsuit against them for the assault and pursuing collecting the judgment.
So if we learn anything from this case it is first always know how many people got out of your car and where they are before you pull away and two, compounding a civil liability matter by seeking physical retaliation is never a good idea.
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