Sharing Tort Liability in the New Sharing Economy
57 Pages Posted: 9 May 2016 Last revised: 24 Apr 2017
Date Written: December 12, 2016
The new sharing economy is forcing policymakers to reexamine current legal structures for several highly regulated industries, including taxi services. But in addition to regulation, tort law’s ability to adapt to the new sharing economy is an equally important concern, and one that few scholars have examined to date.
Although many sharing-economy companies, like ridesharing service Uber, merely purport to connect individuals to each other for the purposes of exchanging specific services, many of these companies are monetized, for-profit businesses that exert some level of control over the underlying commercial transaction. When an individual service provider, like an Uber driver, commits a tort, the victim may be under-compensated if that individual provider alone is liable. Holding the sharing-economy company vicariously liable may be appropriate for ensuring fairness for tort victims.
Fortunately, pre-existing tort principles — particularly vicarious liability concepts of respondeat superior, liability for independent contractors, and joint enterprise liability — already provide the framework for applying retrospective common law remedies in the sharing-economy context. Even though sharing-economy companies challenge the status quo with their innovative and non-traditional business approaches, pre-existing principles suffice to clarify tort liability in this new context. By liberally using the basic analysis and underlying policy rationales of existing vicarious liability concepts in particular, courts can ensure fairness under modern tort law, and policymakers can proceed with a holistic understanding of how retrospective remedies are well-poised to address some of the unique issues raised by the new sharing economy.
Keywords: Tort, Tort Theory, Vicarious Liability, Sharing Economy, Gig Economy, Uber, Lyft
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