California Civil Code section 2338 is a short, old statute that predates the internet by more than a century, yet it sits at the center of modern Civil Code 2338 rideshare litigation. The statute codifies a basic agency principle: a principal is responsible for the negligence of an agent acting within the scope of the agent's authority. Applying that century-old rule to a smartphone app that dispatches drivers in real time requires careful doctrinal work, and it was central to the liability theory behind the firm's rideshare trial verdict.
2338
Civil Code section codifying principal-agent liability
4 phases
Trip statuses that shape the scope-of-agency argument
Civil Code section 2338 provides that a principal is responsible to third parties for the negligence of an agent in the transaction of the business of the agency, including wrongful acts committed as part of that business, from the time the agent begins to act within the scope of the agent's authority. This is not a novel theory invented for the gig economy. It is the statutory foundation for respondeat superior liability that California courts have applied to employer-employee relationships for generations. The Civil Code 2338 rideshare argument extends the same reasoning to the relationship between a transportation network company and the driver acting on its platform at the moment of a crash.
The threshold question is whether the driver was acting as an agent of the platform, and if so, whether the driver was acting within the scope of that agency at the time of the incident. Several facts tend to support an agency finding: the driver had accepted a ride request through the app at the time of the crash; the platform controlled the fare, the route suggestions, and significant aspects of how the ride was completed; the driver's conduct was governed by platform rules and incentive structures; and the platform held itself out to the public, including the injured passenger, as the entity providing safe transportation.
Platforms distinguish between the app being off, on but with no accepted ride, en route to a passenger, and a passenger actively in the vehicle. For the strongest agency theory, the facts should show the driver was actively engaged in platform-directed conduct, ideally with a passenger in the vehicle or en route under an accepted request. This phase distinction often determines which insurance policy responds.
Defense counsel argues that independent contractor classification defeats any agency theory. That conflates two distinct questions. Independent contractor status is relevant to, but not automatically dispositive of, whether an agency relationship exists. Courts look at the actual degree of control over the specific conduct at issue, not the label assigned.
A Civil Code 2338 theory works best presented alongside direct negligence theories such as negligent hiring or supervision. Presenting both gives the jury more than one path to holding the platform accountable, which matters when the defense aggressively challenges the agency relationship itself.
We build the Civil Code 2338 rideshare argument by marshaling evidence of the platform's operational control at the moment of the crash: what the app required of the driver, what data the platform captured about the trip, and what representations the platform made to the passenger about safety.
The case behind this page
The full story of a jury holding a driver and a TNC accountable.
Read the full caseRelated doctrine
The vicarious and direct negligence theories that run alongside agency.
Read the doctrineRelated breakdowns from this case and our transportation practice.
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Refer a caseCivil Code section 2338 provides that a principal is responsible to third parties for the negligence of an agent acting within the scope of the agent's authority, including wrongful acts committed as part of the agency's business.
The statute supports an argument that a transportation network company, as principal, can be held responsible for the negligence of a driver acting as its agent while the driver is engaged in platform-directed conduct, such as an accepted ride.
Not automatically. Independent contractor classification is relevant but not dispositive. Courts look at the actual degree of control the platform exercises over the driver's conduct at the time of the incident to determine whether an agency relationship existed for liability purposes.
