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She fractured her spine after the car ran a red light. Uber said she signed away her rights to a jury trial

Oona Goodin-Smith, The Philadelphia Inquirer on

Published in News & Features

PHILADELPHIA -- When you download Uber's app, you agree that you're older than 18, that you're not using a stolen credit card to pay your driver, and -- if you're like one Philadelphia woman and fracture your spine in a car crash -- that you won't seek a jury trial against the ride-share giant.

But, a Philadelphia Common Pleas Court judge has ruled that, because Uber can't prove that Jillian Kemenosh actually read the company's terms and conditions before she signed up or rode in the car that ran a red light, she can't be forced to settle her claims behind closed doors.

Sitting in the back seat of an Uber in March 2018, Kemenosh was more than halfway home on a four-mile trip from Columbus Boulevard to her Center City apartment when the driver of the 2010 Toyota Highlander ran a red light at 16th and Vine Streets, crashing into another vehicle.

Suffering a fracture to her spine, concussion, and traumatic brain injury, Kemenosh sued Uber, its local subsidiaries, and the driver, requesting a jury to determine her payout.

But, Uber argues in court documents, by approving the ride-share's "terms and conditions" when she downloaded the app in 2013, Kemenosh had already forfeited her right to a jury, agreeing instead to resolve any legal disputes only through binding arbitration, which forces users to waive their rights to sue and settle matters privately.

Proponents of arbitration say that it's faster and cheaper than court. But critics say it revokes a consumer's right to publicly take action against a company.

 

"Our entire judicial system is founded on a trial by jury," said Kemenosh's lawyer, Joseph L. Messa Jr.

In a 19-page opinion this month, Philadelphia Common Pleas Judge Abbe F. Fletman sided with Kemenosh, determining that because the app makes it possible to register for Uber's services without clicking on a hyperlink to review the company's terms of service, "the registration process did not properly communicate an offer to arbitrate under Pennsylvania law."

Uber and a lawyer for the company did not return requests for comment. Uber has until Feb. 3 to appeal Fletman's ruling.

Had Kemenosh been required to click a link, check a box confirming she read and agreed to Uber's terms and conditions, or received email notice of the company's policies, Uber's arbitration-only rule would perhaps be valid, the judge wrote.

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