Your car breaks down. You call a tow truck and a ridesharing service. The car pulls up and you get in. The driver seems a bit disheveled but you brush it off because you are in a hurry to get to a meeting. After you’re on your way, the smell of alcohol is unmistakable and suspecting the driver is drunk, you tell him to pull over. Before he can do so, he rear-ends the car in front of you, opens the door, and takes off running. Now, you’ve got a gash above your eye and you’re stranded. To make matters worse, when you get out of the car to call the police, someone steals your laptop from the backseat.

The police investigation reveals that the driver was using an alias, allowing him to skirt around his criminal record and disappear. Unlike taxi services, the ridesharing service does not use fingerprints for their background checks. If they did, the driver’s fingerprints would have been flagged by the FBI’s integrated automated fingerprint identification system (IAFIS). But because fingerprints are not used in the background check run by the ridesharing company, you have no way to identify the driver who you believe was driving drunk. Ultimately, the police discover that when using a different name, the driver was convicted of homicide by vehicle while driving under the influence. By then, he was long gone.

For its part, because the driver was an independent contractor, the ridesharing company promptly denies responsibility for the driver’s use of its service to carry out his plan to rob you.

You then look more closely at the terms you signed as a condition being able to use the ridesharing service – terms which you now realize include a limitation on liability clause. The purpose of this clause is to absolve the ridesharing company of all liability for any actions of the driver, negligent or intentional.

But does the liability waiver bar all recourse against the ridesharing company?

That is what the ridesharing company asserts – but you may be able to argue that the liability waiver is invalid as against public policy and/or does not apply to your circumstances.

In a different context, in Stelluti v. Casapenn Enterprises, LLC, the New Jersey Supreme Court held that a waiver of liability agreement that the plaintiff signed when she became a member at a fitness center precluded her from recovering for injuries arising from her use of equipment at the center. However, the Court also found it would be contrary to the public interest to condone “willful blindness” to safety issues.

In our hypothetical situation, the issue is – does performing a background check that fails to turn up a driver’s criminal record and use of an alias indicate “willful blindness” to the rider’s safety?