Direct Negligence Against Uber and Lyft

Bottom line. Direct negligence under Civil Code § 1714 targets the TNC's own institutional conduct — retaining a driver despite documented complaints, continuing to match him with riders, ignoring removal requests, and selecting him through the algorithm. Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993 and the Ninth Circuit's Doe v. Uber memorandum disposition confirm that the duty exists. None of this depends on the driver's classification.

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The default duty of care

Civil Code § 1714 establishes the default duty of care in California. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771.) That duty:

"imposes a general duty of care on a defendant only when it is the defendant who has 'created a risk' of harm to the plaintiff, including when 'the defendant is responsible for making the plaintiff's position worse.'" (Kuciemba v. Victory Woodworks, Inc. (2023) 14 Cal.5th 993, 1011, quoting Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.)

Where a defendant's affirmative conduct creates an unreasonable risk of injury, the default duty applies, and the defendant bears the burden of establishing an exception under the Rowland factors. (Kuciemba, at p. 1013.)

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The Ninth Circuit confirms Kuciemba applies to TNCs

The Ninth Circuit recognized the significance of Kuciemba to TNC litigation in Doe v. Uber Technologies, Inc. (9th Cir. 2024) 90 F.4th 946, a published certification order. The court concluded that Kuciemba "calls into question" Jane Doe No. 1 v. Uber Technologies, Inc. (2022) 79 Cal.App.5th 410 — the only published California decision to have held that Uber owed no duty of care to riders — and observed that the court was "aware of no other California court that has followed [its] reasoning."

Hacala v. Bird Rides, Inc. (2023) 90 Cal.App.5th 292, 318 n.11, took the same view, expressing it was "not convinced" the "necessary component" test was relevant to the duty inquiry.

After the California Supreme Court declined certification, the Ninth Circuit issued an amended memorandum disposition reversing summary judgment for Uber. (Doe v. Uber Technologies, Inc. (9th Cir. Jan. 13, 2025) 2025 WL 80365.) The court concluded that Uber owed a duty to exercise reasonable care for its app users' safety, including a "duty not to expose others to an unreasonable risk of injury at the hands of third parties." The memorandum disposition is non-precedential under Ninth Circuit Rule 36-3 but is citable for its persuasive value. The Supreme Court denied certiorari on October 6, 2025. (Uber Technologies, Inc. v. Drammeh, No. 24-1020.)

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The TNC's affirmative conduct: not nonfeasance, misfeasance

The TNC's affirmative conduct in passenger injury cases is not a single act but a course of institutional decisions:

• Retaining the driver on the platform despite documented complaints, low ratings, and accident history.
• Continuing to match the driver with riders after prior motor-vehicle incidents.
• Failing to investigate or meaningfully respond to rider complaints despite having promised riders it would do so.
• Ignoring explicit rider requests to remove the driver from the platform.
• Affirmatively selecting the driver through the algorithm and matching him to the plaintiff.

Under Kuciemba's framework, this is misfeasance, not nonfeasance. The TNC's affirmative conduct created the risk by putting a known-dangerous driver in the plaintiff's path.

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Every Rowland factor supports imposing a duty

When the defense argues that an exception to the § 1714 default should apply, the Rowland v. Christian (1968) 69 Cal.2d 108 factors are how a court decides. In a TNC case where the company had data showing the driver was unsafe and continued to deploy him:

Rowland factor	TNC application
Foreseeability of harm	Overwhelming. The TNC has actual knowledge of unsafe driving through complaints, low ratings, GPS/telematics data, and prior incidents.
Certainty of injury	High. The plaintiff was actually injured in a foreseeable manner.
Connection between conduct and injury	Direct. The algorithm matched this driver with this rider.
Moral blame	Substantial. The TNC profits from the matches it knows are dangerous.
Policy of preventing future harm	Strong. Imposing a duty creates the incentive to use the data the TNC already collects.
Burden of prevention	Minimal. The TNC already has the complaint-tracking and deactivation systems. It need only use them.
Availability of insurance	Available. The required coverage exists, and § 5433(f) preserves liability above the policy.

The defense cannot carry its Rowland burden on these facts.

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The institutional-conduct record (and how to build it)

To win on direct negligence, develop the record on the TNC's own conduct in discovery. From the discovery roadmap:

• Category (10) — Algorithmic systems. Matching algorithm, fare calculation, surge pricing, performance evaluation, automated deactivation triggers.
• Category (13) — Complaints, tags, and feedback. All rider reports by category, removal requests, customer support records. The single most important category.
• Category (14) — Prior accidents and RideCheck activations. Internal review outcomes.
• Category (15) — Deactivation and account review. Authority and data the TNC had and chose not to use.
• Category (17) — Safety representations. The 99.9% claim, US Safety Reports, Community Guidelines undertakings.

Pair this with the negligent retention page and the negligent undertaking page. The three direct-liability theories support overlapping but distinct elements; pleading all three preserves liability under any one.

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How direct negligence differs from negligent retention and negligent undertaking

Theory	Focus	Key authority
Direct negligence (§ 1714)	TNC's affirmative conduct creating the risk	Kuciemba, Cabral
Negligent retention (CACI 426)	TNC's failure to remove a worker it knew or should have known was unfit	Noble v. Sears (1973) 33 Cal.App.3d 654
Negligent undertaking (CACI 450)	TNC's negligent performance of safety promises voluntarily assumed	Artiglio v. Corning (1998) 18 Cal.4th 604

Plead all three. Each is independent. Each can win on its own.

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Practitioner playbook

1. Plead § 1714 direct negligence as a stand-alone count. Reference Kuciemba's misfeasance framing and the Rowland default duty.
2. Develop the institutional-conduct record. Categories (10), (13), (14), (15), and (17) from the discovery roadmap.
3. Cite Doe v. Uber 9th Cir. and the 2025 cert denial. The federal authority is on plaintiffs' side, and Jane Doe No. 1 has been functionally overtaken by Kuciemba.
4. Frame the case as misfeasance, not nonfeasance. The TNC selected the driver. The TNC matched the driver. The TNC profited from the trip.
5. Pair with negligent retention and negligent undertaking. Three direct-liability theories surviving Prop 22 entirely.

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See also

• Hub: The Seven-Theory Framework
• Negligent Retention of Unfit TNC Drivers (CACI 426)
• Negligent Undertaking and the TNC's Safety Promises (CACI 450)
• TNC Discovery Roadmap — 24 Categories
• Proposition 22 Is a Labor Statute, Not a Tort Immunity

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