In an illuminating article, A Novel Tort Duty for Platforms that Intermediately Produce Real World User Interactions, Jordan Wallace-Wolf proposes that we recognize that a distinctive duty of care should attach to internet platforms that “cultivate” markets. Ridesharing Apps— Uber and Lyft— are the paradigm platforms that he has in mind. Professor Wallace-Wolf’s perceptive proposal warrants careful consideration. It puts its finger on properties of the interactions that platforms promote that courts and other commentators have not identified as clearly. And its proposed liability rule responds to those properties in an attractive, justified way.
Internet platforms puzzle courts and commentators, and for good reason. For one thing, internet platforms come in myriad forms. Zoom enables people who are not in the same room to speak face-to-face, but the fact that it uses the internet to connect people who might otherwise speak by phone does not appear to present any significant or special legal issues. The internet infrastructure enables interactions that would not otherwise be possible— and is the medium through which those interactions take place— but Zoom’s enabling of the interaction does not, by itself, give rise to any distinctive responsibility for the content or the course of the interaction. No one would think that Zoom bears responsibility for a bank heist merely because the criminals involved happened to plot the heist over a Zoom connection.
But platforms like Uber and Lyft are different: they don’t just connect users, they create markets. And it is not clear what we should make of this, if anything, legally speaking. Perhaps these platforms are no more responsible for the real-world interactions they enable than Zoom is for the conversations that people hold by accessing its technology. Perhaps, in both cases, the Internet enables a familiar phenomenon, namely, a two-sided market. And perhaps there is nothing legally special about internet-enabled two-sided legal markets. Just as Visa’s business is connecting retailers and sellers, and just as Visa benefits from being used by more shoppers and more sellers, perhaps Uber and Lyft merely connect people who need rides with people who need riders. (P. 454.)
But perhaps not. Courts have found the matter anything but obvious. Multiple legal frameworks might be brought to bear on the internet platforms of particular interest to Professor Wallace-Wolf, and many of them have been. Uber and Lyft are Apps. Like other Apps, they have been treated as products. Professor Wallace-Wolf reminds us of Brookes v. Lyft, a Florida decision classifying Lyft as a product and entertaining the possibility that it is a defective one because it requires drivers to take their eyes of the road. (P. 442.) Another court is in the process of considering deploying product liability law to specify rights and responsibilities with respect to sexual assaults. Alternatively, assaults and other torts arising during transport might be analyzed through the lenses of vicarious liability. Perhaps Uber drivers are agents (employees, or participants in a joint enterprise, or joint venturers) of Uber and Uber is therefore responsible for the torts they commit in the course of ferrying passengers about. If we balk at assimilating Rideshare Apps to products because rides fit more readily into the category of “services,” we might characterize them as a new kind of “profession,” or as a new form of common carrier. Rideshare Apps resemble utilities in their apparent tendency towards monopoly, and they provide the very service that the most canonical of common carriers provide. And “common carrier” liability is a longstanding and legally rich framework. Last, but surely not least, we might bring general negligence liability to bear and ask if the distinctive character of a Ridesharing App brings a duty of care in tow and, if so, what the contours and scope of the resulting duty are.
All of these categorizations are plausible. All of them have been explored by commentators, and most of them have been explored by courts. Each of them might be appropriate in some circumstances. Professor Wallace-Wolf does a deft job of describing them and showing how each picks up on particular salient properties of Rideshare Apps. His distinctive contribution, however, is to put another possibility on the table. A Novel Tort Duty for Platforms takes general negligence analysis as its starting point, pinpointing the faults in the prevailing applications of general negligence law and, taking indirect inspiration from Bob Rabin’s felicitous idea of “enabling torts,” proposes that we respond to the special properties of Rideshare Apps by recognizing a duty of care with respect to the social interactions that those Apps sponsor.
When courts bring general duty analysis to bear, they focus on the relationships of the Apps to one party to the interaction. If the alleged wrongdoing is an assault on the customer, courts focus on the relation of App to customer. If an assault on the driver is at issue, courts focus on the relation of App to driver. This eclipses the distinctive way in which Rideshare Apps differ from standard two-party markets: Rideshare Apps create the market for the interactions that they broker. Visa does not. The duty of care that responds to this special property of Rideshare Apps is a duty to sustain the integrity of the interaction—to underwrite the trust that is essential to its existence. This is, to be sure, a vague idea. Wallace-Wolf writes of “intermediating” the relationship. (Pp. 456-60.) But these vague phrases orient us in the right way and stimulate us to think about responsibility in a fruitful way.
On the one hand, Wallace-Wolf’s approach draws on the existing resources of tort law. On the other hand, it doesn’t force Rideshare Apps into the Procrustean bed of a preexisting category that can be made to fit them only with a bit of torturing. Instead, it uses the existing lenses of the law to bring into focus and respond to a central property of Ridesharing Apps that makes them distinctive but legally elusive. I would amend Wallace-Wolf’s idea of “intermediation” a bit and say that the Apps both constitute the market for the interactions at issue, and sponsor, or underwrite, the ensuing relationships. By dialing in the possibility of a duty to sustain the interactions that they sponsor, Professor Wallace-Wolf’s A Novel Duty for Platforms has significantly advanced our thinking about a novel and important domain of tort liability, and done us all a great service.
