FILED

DALLAS COUNTY
12/29/2016 3:46:25 PM
FELICIA PITRE
DISTRICT CLERK

6 CT-E-SERVE
1 SOS-E-SERVE

DC-16-16470
CAUSE NO. ________________

Freeney Anita

SARAH MILBURN, JOHN MILBURN, and CAROLYN

MILBURN,
Plaintiffs,
v.

IN THE DISTRICT COURT OF

UBER TECHNOLOGIES, INC.; RASIER, LLC;

UBER USA, LLC; AMERICAN HONDA MOTOR
CO., INC.; HONDA MOTOR CO., LTD.; ARIAN
YUSUFZAI, and DAWOOD KOHISTANTI a/k/a
DAWOOD HOHISTANTI,
Defendants.

DALLAS COUNTY, TEXAS

F-116TH
____ JUDICIAL DISTRICT

P LAINTIFFS O RIGINAL P ETITION , R EQUEST FOR D ISCLOSURE ,

A ND R EQUEST FOR A J URY T RIAL

Plaintiffs Sarah Milburn, John Milburn and Carolyn Milburn (the Milburns) file this Original
Petition and assert the following allegations and claims against Defendants Uber Technologies, Inc.,
Rasier, LLC, American Honda Motor Co., Inc., Honda Motor Co., Ltd., Arian Yusufzai, and Dawood
Kohistanti and pray for their damages as follows:
I.

I NTRODUCTION
1.

This lawsuit involves catastrophic injuries to a young woman, Sarah Milburn, who tried

to make safe and responsible decisions. However, two corporationsUber and Honda--failed to provide
her with the safety she reasonably expected, and as a result, she has suffered life-changing injuries and
faces a lifetime of physical impairment and challenges as a result of quadriplegia paralysis. Had these
corporations acted responsibly as good corporate citizens and enforced a culture of safety, Sarah would
not be catastrophically injured. This lawsuit seeks accountability of these corporations and a change in
how they do business to protect our communities and so that other passengers do not have to endure
what Sarah has suffered and will continue to endure for the rest of her life.

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II.
P REYING ON O UR C OMMUNITY S D ESIRE F OR S AFETY AND C ONVENIENCE :
T HE S TORY OF U BER AND ITS D RIVE FOR P ROFITS
2.

Uber Technologies, Inc. is an international corporation that was founded in 2009 by two

young entrepreneurs in Northern California. In the span of just 7 years, it has expanded to doing
business in over 66 countries and more than 500 cities worldwide. Ubers aggressive expansion has
driven up its valuation to over $60 billion in advance of a much-speculated initial public stock offering,
and it has been called the most valuable startup in the world.1
3.

Unfortunately for the public, this remarkable and historic accumulation of value and

money by Uber has not been done in a responsible and safe manner. Instead, Uber has become the
archetype of a corporation that put profits in front of people.
4.

Uber operates a vehicle for hire car servicea business that is not new. Vehicle-for-

hire bsuiness began nearly four centuries ago in Paris and London when horse-drawn carriages
transporting passengers around town for a charge. By the early 1900s, gas-powered taxis first started
operating in New York City and utilized meters to calculate the distance of the trip and thus the fare.
The taxi industry grew as the automobile industry grew.
5.

A major technological advance in taxis arrived in the 1940s with the use of two-way

radios. These radios allowed the use of dispatch offices. With the radios, passengers could call into the
dispatch offices to request a taxi, and the dispatcher could communicate with the taxi on the two way
radio and tell the taxi where the passenger was that needed a ride. For the next 70 years, the two-way
radio dispatch model predominated the taxi industry.
6.

When Uber began in 2009, its major technological breakthrough was a method to

improve upon the two-radio dispatch model by utilizing the exploding growth of smartphones and
created a downloadable application. With Ubers smartphone application, instead of calling a dispatch
center and asking for a ride, passengers could open the application and, with a click on the screen,
indicate they need a ride. Ubers computers then communicate with Ubers drivers via an application
on the drivers smartphone (usually provided by Uber) and tell the drivers where to gojust like the old
radio dispatch would do. For all of its glitz and technology, Uber is little more than just that: a
computerized worldwide dispatch center running a taxi service just like which has existed since the
1940s in this country.

See e.g., Evan Comen, Uber is the Worlds Most Valuable Startup, Wall Street 24/7, October 16, 2016, available at:
http://247wallst.com/apps-software/2016/10/16/uber-is-the-worlds-most-valuable-startup/

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Different Technologies;
Same Business: Transporting Passengers for Pay

7.

Despite the fact that Uber functions just like a taxi service, Uber has tried to avoid the

regulation and liabilities of the taxi service model. Uber seeks a significant competitive advantage (and
therefore a greater opportunity to profit) over traditional taxis by attempting to exempt themselves from
regulations that otherwise govern taxi cab and limousine services. Instead, Uber attempts to call itself
a technology company or what is sometimes called a transportation network company (TNC) and
denies that it is operating a taxi service. Uber invests significant funds in lobbying governmental bodies
to accept that concept. However, Ubers attempts to re-frame its business just place the method
(smartphone application dispatch vs. two-way radio dispatch) over the substance of what the business
is (transporting passengers to destinations for money). At the end of the day, Uber is no different than
any taxi or car service company that has existed for decades.
8.

Another way that Uber has tried to obtain a competitive advantage is by mis-classifying

its drivers as independent contractors. Because Ubers goal is to maximize profits, it does not want all
of the liabilities that attach to classifying its drivers as employees. Uber is concerned that if its drivers
are employees, then Uber has to comply with all federal and state regulations regarding employees,
which include tax issues, paying of overtime, and providing all other government-mandated employee
benefits. That would cut into Ubers profits, so Uber has refused to treat its drivers as employees, and
as a result, Uber has been subjected to litigation all across the country from its drivers.
9.

Uber is also concerned that if its drivers are employees or if Uber is determined to

control its drivers, then Uber is automatically responsible for its drivers negligence and any damages
that result from its drivers negligence under legal doctrines such as respondeat superior. Given that Uber
claims over one million rides a day, that potential liability threatens Ubers rapacious desire to maximize
profits.

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10.

This has resulted in conflicting desires for Uber. On the one hand, Uber wants to

promote its brand and try to ensure quality in its service. However, in its desire to avoid any
responsibility (under regulation or civil liability) for its drivers, in documents and civil pleadings Uber
disclaims any control over its drivers. Uber takes the position that it does not assert any control over
its drivers to the point it does not promulgate or enforce safety policies for fear this might be seen as
control. For Uber, it would rather be able to claim the drivers are independent contractors than make
a concerted effort to provide a safe service.
11.

Uber does not stop at merely disclaiming any connection with its drivers. Uber has gone

further to insulate itself by setting up an elaborate and opaque system of shell companies that are
subsidiaries of Uber. Some information about Ubers labyrinthine system can be gleaned from public
filings in lawsuits involving Uber. Two of those shell entities are Rasier, LLC and Uber USA, LLC.
Both are wholly-owned subsidiary companies of Uber and appear to exist only on paper. Uber sets up
these shell entities to interact with the drivers so that Uber can claim another layer of distance. However
these shell entities are nothing more than alter egos and corporate fictions of Uber. These shell entities
are designed to circumvent the law and further mislead the public.
12.

For instance, Uber created Rasier, and drivers (such as the driver in this case) sign an

agreement with Rasiernot Uber. As part of that agreement, when passengers are transported and a fee
is earned, part of the fee goes to the driver and part allegedly goes to Rasier. Unbeknownst to the public
that is looking for a ride from Uber, Uber allows the passengers to be misled by not making clear that
the driver purports to be affiliated with Rasier. Apparently the money earned by Rasier goes back to
Uber. The exact mechanism of this arrangement is not known, but discovery in this case will answer
such questions. What is apparent is that the entire system is just a fiction created by Uber to shield itself
from a relationship with the drivers while Uber profits from the very rides the drivers provide.
13.

Ubers efforts to disclaim its drivers as employees is ultimately unavailing. Ubers

subsidiaries are, as a matter of law, Ubers alter egos. Further Uber retains the right of control over its
drivers such that, as a matter of law, the drivers are clearly Ubers agents, employees, or co-venturers
for purposes of liability. Nevertheless, in its ill-advised attempts to claim otherwise, Uber subjects all
of its passengers to unnecessary dangers.

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III.
U BER S C ALLOUS AND M ISLEADING C LAIMS R EGARDING S AFETY
14.

On its website, Uber claims to make a commitment to its passengers like Sarah and to

our community to keeping people and communities safe:2

Uber promotes its commitment to safety by marketing its product as providing a safe ride:

15.

Uber markets its service as a safe ride because that is what passengers want. But such

claims are little more than fraud. In order to induce paying passengers to give Uber money, it falsely and
recklessly promotes the idea that its rides are safe. However, Uber does virtually nothing to ensure that
passengers are safe once they get in the car. Just in the last year, several lawsuits have exposed Ubers
fraudulent safety claims and have led to Uber having to pay tens of millions of dollars and to stop
defrauding the public with its misleading claims.
16.

In preying on passengers, Uber once claimed it had industry-leading background

checks. However, district attorneys in San Francisco and Los Angeles sued Uber for the reason that
Ubers background checks were minimal and less than what are used for licensed taxi drivers. The
District Attorneys showed that Ubers background checks failed to prevent dozens of criminals from
driving for Uber in those cities, including several registered sex offenders and a convicted murderer.
After agreeing to pay up to $25,000,000.00 to settle that case, Uber also has to stop using the misleading
and false claim that its background checks were industry-leading.
2

See https://www.uber.com/ride/safety/ (last accessed 12/22/16).

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17.

Similarly, a class action lawsuit in California was brought by a class of passengers

complaining of the safety-related advertising Uber utilizes. Uber had been advertising that Uber rides
were safer than a taxi and claiming that it was the safest ride on the road despite its virtually nonexistent safety policies. Again Uber had to settle such a lawsuit, agreeing to pay $28.5 million and
change its safety-related advertising. Further, Uber had to stop scamming its customers by adding a
Safe Ride Fee on top of the actual service charge. Uber still charges the fee, but now just calls it a
booking fee.
18.

Ubers pattern of behavior demonstrates a clear intention to mislead the public about

the safety of its service when it is much less safe than other options. Yet despite the continual lawsuits
and tens of millions in settlements, Uber still tries to prey upon passengers desire for safety.
19.

Uber has particularly focused on targeting passengers who might be out at a restaurant

or bar at night consuming alcoholic beverages and who want to do the responsible thing by not
operating a motor vehicle after consuming alcohol. Riding on the back of decades of sober driver
advertising by public interest groups, Uber has tried to profit on that concept. Uber has even installed
kiosks in some cities near where patrons might consume alcoholic beverages offering Uber Safe rides
in which people blow into a Breathalyzer and, if the kiosk calculates alcohol content in excess of the
legal limit, an Uber car is automatically hailed:

20.

Uber also markets heavily around holidays when people may be out celebrating with

alcoholic beverages and offers discounts to beas their press releases sayEveryones Designated
Driver.

Uber uses such language to induce business from safety-conscious people who want to be safe and
responsible for their own sake and the sake of the communities in which they live. Sadly, safety is just

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a marketing term for Uber, and Uber does nothing to ensure that its designated drivers are any more
safe than those who are driving under the influence.
21.

Ubers unsafe practices have and forseeably will continue to lead to devastating

consequences for its passengers until Uber accepts or learns that the price for those human costs are
greater than the amount of money Uber saves by abandoning safety policies.
IV.
SARAH MILBURN BECOMES THE HUMAN COST
UBERS LACK OF A CULTURE OF SAFETY
22.

OF

On the evening of November 14, 2015, twenty-three year old Sarah Milburn was home

in Dallas on a break from college at Oklahoma State University where she was a senior. That evening
Sarah went to meet her friends, and they decided to meet some more friends at another location in
Uptown Dallas. Sarah and her friends were enjoying the holiday and catching up on what had been
happening in their lives.
23.

As the night came to a close, Sarah and her friends decided to responsibly not drive their

cars, but to get a car service to transport them. They were the exact type of people that Uber targets
with its advertising about being Everyones Designated Driver. One of Sarahs friends used his phone
to ask Uber to pick them up and take them to another location.
24.

Uber dispatched Arian Yusufzai to pick up Sarah and her friends. Uber had a business

relationship and contractual agreement with Yusufzai to be an Uber driver, despite the fact that Yusufzai
had a criminal background from running a gambling den and possessing (and possibly distributing) the
illegal drug K2. A criminal background search would turn this up. A simple internet browser search
would turn up newspaper articles from 2014 specifically naming Yusfzai and Dawood Kohistanti and
describing their arrest by the Wise County Sheriffs Office, including the Wise County Sheriffs
statement They had K2 under the counter. You had to know they had it and ask for it.3
25.

When Uber dispatched Yusufzai, he was driving a 2011 Honda Odyssey (Vin No.

5FNRL5H63BB092665) minivan owned by Dawood Kohistanti. Uber knew or should have known
what kind of car Yusufzai was driving. Uber knew or should have known that Yusufzai did not own
the car he was driving. Uber knew or should have known that Yusufzai was driving a car owned by
Dawood Kohistanti who was arrested and convicted of committing crimes with Yusufzai. Uber knew

See Pair busted on gambling charges. WISE COUNTY MESSENGER, May 24, 2014.
Available at
http://www.wcmessenger.com/20 14/news/pair-busted-on-gambling-charges/ (accessed on February 25, 2016)

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or should have known that Kohistantis vehicle was not insured as Kohistanti failed to maintain the
state-mandated insurance.
26.

Yusufzai went to the location as instructed by Uber and picked up six people, including

Sarah, in Kohistantis minivan.

27.

Sarah sat in the middle seat of the third row. Responsibly, she put her seat belt on

despite the odd design of the third row seatbelt.

28.

After picking up the passengers, Ubers driver began driving them to the destination.

The police report indicates that Ubers driver was driving at excessive speeds. As Ubers driver
approached the intersection of McKinney Avenue and N. Fitzhugh Avenue, the traffic control light
turned red requiring him to stop. According to the police report, Ubers driver nevertheless ran the red
light. As Ubers driver was almost through the intersection, the minivan was struck on the side by a Ford
F150 pickup truck being driven by 47 year old Richard Deleon.4 Following impact, the minivan rolled
onto its left side and top before coming to rest near the curb.
29.

Sarah was instantly hurt. The Honda Odyssey was not crashworthy. Despite wearing

her seatbelt, the Honda Odysseys seatbelt for the middle seat in the third row was not designed safely
or malfunctioned. As a result, Sarah was not safely restrained in the collision, and her head flew forward
into the seat in front of her causing a spinal injury.
30.

At the scene, Sarah could not move and remained buckled into the third row. All of the

other passengers managed to escape the collision without serious injuries. Eventually an ambulance and
emergency medical technicians arrived, extracted Sarah from her seatbelt, and took her to Baylor
University Medical Center.
31.

In the early hours of November 15, John Milburn was woken from sleep by his phone

ringing. It was a call that every parent fears. John answered and it was one of the EMTs explaining that
his daughter Sarah had been in a collision, was seriously hurt, and was being taken to Baylor. John woke
his wife Carolyn and they immediately went to the hospital where they learned a devastating truth:
Sarahs neck had been fractured and she was rendered a quadriplegic.
32.

Sarah now lives at home with her father and mother where the harsh reality of their lives

is faced every day. Sarah will need on-going medical care and assistance for the rest of her life. John
and Carolyn do what any parent would do: commit all of their resources and lives to trying to help their
daughter, including waking up every few hours every night to roll Sarah in her bed and perform medical

Deleon fled the scene but was later apprehended. Deleon has been cleared of all criminal wrongdoing and Dallas County
did not proceed with any charges against him.

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procedures like catheterizing her. While the Milburns remain a strong and supportive family unit, the
life that they all knew before this tragedy is gone forever.
33.

Sarah had trusted Uber and its driver to drive in a safe manner. Uber failed her. Sarah

had trusted that wearing her seatbelt would restrain her in a collision. Honda failed her. These two
corporations failed to act in a responsible and safe manner, and Sarah Milburn and her parents must
now bear the consequences of these two corporations failures. The Milburns bring this lawsuit to right
this wrong and to hopefully prevent, to the extent possible, a tragedy like this from falling upon any
other unsuspecting member of the community.
V.
P ARTIES
34.

Plaintiffs John and Carolyn Milburn are residents of Dallas County. John and Carolyn

are the natural parents of Sarah Milburn. Sarah Milburn resides with her parents in Dallas County where
they care for and assist her with daily living.
35.

Defendant Uber Technologies, Inc. is a foreign for-profit corporation organized and

existing under the laws of the State of Delaware with a principal place of business at 800 Market St., San
Francisco, CA 94102. Uber Technologies, Inc. maintains and may be served with process by
service through its registered agent, CT Corporation at 1999 Bryan St., Suite 900, Dallas, TX
75201-3136.
36.

Defendant Rasier, LLC is a foreign limited liability company organized and existing

under the laws of the State of Delaware, whose principal office is 182 Howard St. #8, San Francisco,
CA 94105. Rasier, LLC maintains and may be served with process by service through its
registered agent, CT Corporation, 1999 Bryan St., Suite 900, Dallas, TX 75201-3136.
37.

Defendant Uber USA, LLC is a foreign limited liability company organized and existing

under the laws of the State of Delaware, whose principal office is 1455 Market St., Fl. 4, San Francisco,
CA 94013. Uber USA, LLC may be served with process by serving the Texas Secretary of State,
1019 Brazos St., Austin, TX 78701 as its agent for service because defendant engages in business in
Texas but has not designated or maintained a resident agent for service of process in Texas.
38.

Rasier, LLC and Uber USA, LLC are wholly-owned subsidiaries of Uber Technologies,

Inc. and are mere alter egos or conduits by which Uber Technologies, Inc. does business. These three
entities are referred to collectively in this petition as Uber or Uber Entities as appropriate.
39.

Defendant American Honda Motor Co., Inc. is a foreign business corporation that

regularly sells products and does business in the State of Texas and is organized and existing under the

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laws of the State of California, whose principal office is 1919 Torrance Blvd., Torrance, CA 90501-2746.
American Honda Motor Co. may be served with process through its registered agent CT
Corporation System, 1999 Bryan St., Suite 900, Dallas, TX 75201.
40.

Defendant Honda Motor Co., Ltd. is a Japanese corporation which regularly sells

products and does business in the State of Texas. Honda Motor Co. may be served with process
pursuant to the Hague Convention by serving a copy of Plaintiffs Original Petition and a copy of the
Citation on Honda Motor Corp., Ltd., 2-1-1 Minami Aoyama, Minato-ku, Tokyo 107-8556, Japan, and
by serving a copy of Plaintiffs Original Petition and a copy of the Citation on its wholly-owned
and controlled alter ego and subsidiary, American Honda Motor Co., Inc., by and through its
registered service agent at the following address: CT Corporation System, 1999 Bryan St., Suite
900, Dallas, TX 75201.
41.

American Honda Motor Co., Inc. is the wholly-owned subsidiary of Honda Motor Co.,

Ltd. and is the alter ego and conduit by which Honda Motor Co., Ltd. does business in the United
States. These two entities are referred to collectively in this petition as Honda.
42.

Defendant Arian Yusufzai is an individual who resides at 3434 Whitney Dr., Frisco,

TX 75034 and may be served there.

43.

Defendant Dawood Kohistanti is an individual who resides at 3434 Whitney Dr.,

Frisco, TX 75034 and may be served there. Kohistanti is also known as Dawood Hohistanti. Records
show either spelling. Plaintiffs will use the spelling reflected in DPS of Kohistanti in this petition but
are bringing suit under either name/spelling.
44.

Defendants Yusufzai and Kohistanti worked together to provide driver services to Uber

passengers like the Plaintiff Sarah Milburn. Yusufzai drove Kohistantis Honda Odyssey with
Kohistantis permission. Yusufzai and Kohistanti working together are sometimes referred to as the
Uber Driver in this petition.
VI.
J URISDICTION AND V ENUE
45.

Venue is proper in Dallas County, Texas under TEXAS CIVIL PRACTICE & REMEDIES

CODE 15.002(a)(1) because Dallas County is the county in which all or a substantial portion of the
claims arose. The Court has jurisdiction over the underlying lawsuit because the amount in controversy
exceeds this courts minimum jurisdictional requirements.

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46.

Venue is also proper under Dallas County Local Rules 1.06 and 1.07, as venue was

established and vested in Dallas County in the related case Cause No. DC-16-05491, In re Sarah Milburn
that was pending in the 116th Judicial Court.
47.

The Court has personal jurisdiction over Uber and its subsidiary alter egos Rasier and

Uber USA. The Court has personal jurisdiction over the Uber Entities as they are engaged in business
in Texas and have purposefully availed themselves of the privilege of conducting business in Dallas
County and in Texas. Continuously and systematically since 2012, the Uber Entities have targeted and
marketed their services to Dallas County citizens. Continuously and systematically since 2012, the Uber
Entities have contracted with residents of Texas who are drivers for the purpose of services being
provided in Texas and in Dallas County. Continuously and systematically since 2012, the Uber Entities
have contracted with residents of Dallas County who seek and receive car services from drivers in and
around Dallas. These continuous and systematic contacts with Texas are so substantial that the Uber
Entities are essentially at home in Texas. Further, the potential claims in this case arise from or relate
to the Uber Entities contacts with Texas such that those contacts with Texas are substantially connected
to the operative facts of this proceeding.
48.

The Court has personal jurisdiction over American Honda Motor Co., Inc. and its

parent corporation Honda Motor Co., Ltd. as together they are engaged in business in Texas and have
purposefully availed themselves of the privilege of conducting business in Dallas County and in Texas.
The Honda entities connections with Texas have been continue and systematic including regularly
marketing, advertising, and selling Honda cars in Texas. These continuous and systematic contacts with
Texas are so substantial that Honda is essentially at home in Texas. Further, the potential claims in
this case arise from or relate to the Honda entities contacts with Texas such that those contacts with
Texas are substantially connected to the operative facts of this proceeding.
VII.
C AUSES OF A CTION A GAINST THE U BER E NTITIES
A.

C AUSE N O . 1: Negligence
49.

Plaintiffs incorporate all prior paragraphs in support of this cause.

50.

At all relevant times, Uber owed a duty to Sarah Milburn and other passengers of Uber

drivers to act with reasonable care. This duty arises by virtue of its employment, agency, joint liability
with, or control of Yusufazi; out of the forseeability of the risks involved in transporting passengers; by
application of the risk-utility test; and by contract.

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51.

Uber breached its duties to Sarah Milburn by acting or failing to act as a reasonably

prudent company would act under the same or similar circumstances, including but not limited to the
following:
a.

Failing to act with ordinary care;

b.

Failing to exercise reasonable care to avoid a foreseeable risk of injury to Sarah and
other passengers;

c.

Failing to use ordinary care in the hiring of Yusufzai to drive passengers;

d.

Failing to use ordinary care in the supervising, retaining, monitoring, or training of

Yusufzai as an employee to drive passengers;

e.

Failing to use ordinary care in selecting Yusufzai as a driver as Yusufzai was

incompetent or unfit to be a driver for hire;

f.

Failing to use ordinary care in exercising whatever control Uber retained over Yusufzai;

g.

Failing to use ordinary care in referring Sarah and her friends to Yusufzai for
transportation;

h.

Failing to adopt, implement, and enforce safety policies;

i.

Through its employed driver transporting Sarah, failing to maintain a safe and proper
lookout;

j.

Through its employed driver transporting Sarah, failing to maintain a safe speed;

k.

Through its employed driver transporting Sarah, failing to stop at a red stop light;

l.

Through its employed driver transporting Sarah, failing to comply with all traffic laws;

m.

Through its employed driver transporting Sarah, operating the Odyssey in this case
while it was not in a reasonably safe condition; and

n.

Failure to perform the transportation service bargained for with care, skill, and
faithfulness so as not to injure Sarah and the other passengers during the performance
of the contracted-for transport.

52.

The above acts or omissions by Uber Entities were a producing and/or proximate cause

of Plaintiffs injuries and the resulting damages Plaintiffs seek in this suit. Plaintiffs pray that, following
a verdict, all such damages asserted below be awarded against the Uber Entities.
B.

CAUSE NO. 2: Negligence Under the Highest Degree of Care Because Uber is a
Common Carrier
53.

Plaintiffs incorporate all prior paragraphs in support of this cause.

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54.

At all relevant times, Uber and its affiliates were acting as a common carrier as Uber

was in the business of carrying passengers and held itself out for hire by the public. Uber solicits
and operates a public transportation service. The business of Uber is the transport for hire of paying
public passengers, and that transportation is not incidental to any other purpose for Uber but rather
is the primary mode of making money. If the public did not seek transportation for pay from Uber,
Uber would have no business and would not exist.
55.

As a common carrier, Uber owed the highest degree of care in the operation of the

conveyance of its passengers and in the boarding and alighting of passengers. That degree of care is
that which would be exercised by a very cautious and prudent person under the same or similar
circumstances.
56.

Uber publicly solicited and operated a vehicle for hire transportation service to and

for the citizens of Dallas County, including Sarah Milburn and her friends. Sarah Milburn and her
friends requested that Uber transport them. Uber agreed and dispatched its driver Yusufzai. At all
relevant times Uber controlled Yusufzai as an employee, agent, or joint venturer. Uber owed Sarah
the highest degree of care as a common carrier.
57.

Uber violated that highest degree of care in the following particulars:

a.

Failing to act as a very cautious or prudent company would under the same or similar
circumstances;

b.

Failing to exercise a high degree of care to avoid a foreseeable risk of injury to Sarah
and other passengers;

c.

Failing to exercise a high degree of care in the hiring of Yusufzai to drive passengers;

d.

Failing to exercise a high degree of care in the supervising, retaining, monitoring, or

training of Yusufzai as an employee to drive passengers;

e.

Failing to exercise a high degree of care in selecting Yusufzai as a driver as Yusufzai

was incompetent or unfit to be a driver for hire;

f.

Failing to exercise a high degree of care in exercising whatever control Uber retained
over Yusufzai;

g.

Failing to exercise a high degree of care in referring Sarah and her friends to
Yusufzai for transportation;

h.

Failing to exercise a high degree of care in adopting, implementing, and enforcing

safety policies;

i.

Through its employed driver transporting Sarah, failing to maintain a safe and proper
lookout;

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j.

Through its employed driver transporting Sarah, failing to maintain a safe speed;

k.

Through its employed driver transporting Sarah, failing to stop at a red stop light;

l.

Through its employed driver transporting Sarah, failing to comply with all traffic
laws; and

m.

Through its employed driver transporting Sarah, operating the Odyssey in this case
while it was not in a reasonably safe condition.

58.

The above acts or omissions by Uber Entities were a producing and/or proximate

cause of Plaintiffs injuries and the resulting damages Plaintiffs seek in this suit. Plaintiffs pray that,
following a verdict, all such damages asserted below be awarded against the Uber Entities.
C.

CAUSE NO. 3: Negligent Undertaking under Restatement (Second) of Torts 323

59.

Plaintiffs incorporate all prior paragraphs in support of this cause.

60.

Uber undertook, for pecuniary benefit, to arrange and dispatch drivers to customers who

requested car services and thus assumed a duty, inter alia, to select, train, monitor, regulate, and control
the drivers and cars used to ensure that the driver and car dispatched would be safe under the
Restatement (Second) of Torts 323. Further, Uber assumed the duty to provide a safe trip and to warn
or protect passengers from foreseeable dangers under the Restatement (Second) of Torts 323.
61.

Having assumed those duties, Uber was negligent as set forth in the preceding causes

in paragraphs 49 and 54.

62.

The above acts or omissions by Uber Entities were a producing and/or proximate cause

of Plaintiffs injuries and the resulting damages Plaintiffs seek in this suit. Plaintiffs pray that, following
a verdict, all such damages asserted below be awarded against the Uber Entities.
D.

C AUSE N O . 4: Fraud by Uber

63.

Plaintiffs incorporate all prior paragraphs in support of this cause.

64.

Prior to and at all material times, Uber represented to the public and Sarah Milburn that

Uber provided safe transportation services and that Uber was committed to safety. Such representations
were material to Sarah in accepting a ride with the Uber driver. Ubers representation was false as Uber
does not enforce even a bare minimum of safety policies. Uber was aware its representations were false,
and yet continued to make such representations with the intention of soliciting customers, including
Sarah Milburn and her friends. Sarah and her friends relied upon the representations that the ride was
being provided by Uber and in a safe manner. But for the false representations, Sarah would not have
gotten in Yusufzais car.

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65.

Ubers fraud is a proximate cause of Plaintiffs damages. Plaintiffs pray that, following

a verdict, that all such damages asserted below be awarded against the Uber Defendants.
VIII.
CAUSES OF ACTION AGAINST HONDA DEFENDANTS
A.

CAUSE NO. 5: Strict Liability and Negligence Claims

66.

Plaintiffs incorporate all prior paragraphs in support of this cause.

67.

Sarah Milburn acted responsibly by using the seatbelt in the Honda Odyssey (the

Vehicle). Unfortunately for Sarah, the Honda was designed in an unsafe manner and was not
crashworthy. As a result, she was profoundly injured when a foreseeable collision occurred.
68.

The Vehicle at issue in this suit was designed, manufactured, constructed, marketed

and/or distributed by and through the agents and/or representatives of Honda.

69.

Honda was regularly engaged in the business of supplying or placing products, like the

Vehicle in question, in the stream of commerce for use by the consuming public, including by Uber and
passengers like Sarah. Further, such conduct was solely for commercial purposes.
70.

The Vehicle remained unchanged from the time it was originally manufactured,

distributed and sold by Honda until it reached the point where Sarah was a passenger and ultimately led
to her injuries. Stated another way, the Vehicle was defective and in an unreasonably dangerous
condition at all times until it ultimately caused Sarahs injuries and damages.
71.

At the time the Vehicle was placed into the stream of commerce, it was, or should have

been, reasonably expected and foreseeable that it would be used by persons such as Sarah in the manner
and application in which it was being used at the time Sarah suffered her catastrophic injuries.
72.

There were no mandatory safety standards or regulations adopted and promulgated by

the federal government or an agency of the federal government that were applicable to the Vehicle at
the time of manufacture and that governed the product risk that allegedly caused harm. Alternatively,
the design of the Vehicle did not comply with mandatory safety standards or regulations adopted by the
federal government that were applicable to the vehicle model at the time of the manufacture and
governed the risks that caused Sarahs injuries. Again, in the alternative, in the event that such standards
were in effect, and they were complied with, they were nonetheless inadequate to protect the public
from unreasonable risks of injury or danger, or the manufacturer, before or after marketing the Vehicle,
withheld or misrepresented the information or material relevant to the federal governments or agencies
determination of adequacy of the safety standards or regulations at issue in the action.

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73.

With respect to the design of the Vehicle, at the time it left the control of Honda, there

were safer alternative designs. Specifically, there were alternative designs that, in reasonably probability,
would have prevented or significantly reduced the risk of injury to Sarah. Furthermore, such safer
alternative designs were economically and technologically feasible at the time the product left the control
of the Honda by the application of existing or reasonably achievable scientific knowledge without
substantially impairing the utility of the vehicle model or otherwise increasing the risk of injury.
74.

At the time the Vehicle left the control of Honda, it was defective and unreasonably

dangerous in that it was not adequately designed, manufactured or marketed to minimize the risk of
injury. By way of example and without limitation, the product in question was unreasonably and
dangerously defective because the seatbelt failed to appropriately restrain Sarah, causing her catastrophic
injuries. Further, the pre-sale and post-sale warnings and instructions were inadequate to remedy the
unreasonable danger.
75.

The above unreasonably dangerous defects in the Vehicle in question were a proximate

and producing cause of Sarahs damages.

76.

Honda breached its duty of care and was thus negligent by:

a.

Designing and distributing the Vehicle model with a design standard that was intended
to meet the minimum government regulations, instead of safely designing the vehicle
to reasonably minimize injuries in foreseeable accidents;

b.

Failing to adequately monitor the performance of its vehicles in the field to ensure that
they were reasonably minimizing injuries and deaths in foreseeable accidents;

c.

Failing to adequately test the vehicle model to ensure that it would be reasonably safe
in foreseeable accidents;

d.

Failing to adequately test the vehicle model's seatbelt system to ensure that it would
perform as intended and be reasonably safe in foreseeable accidents;

e.

Designing and manufacturing the Vehicle with a third-row seatbelt system that was
defective and dangerous;

f.

Designing and manufacturing the Vehicle with a seatbelt system that was defective and
dangerous;

g.

Failing to provide adequate warnings and instructions with the Vehicle; or

h.

Failing to provide adequate post-sale warnings, recalls or retrofits after Honda knew, or
should have known, that the vehicle model was defective and unreasonably dangerous.

77.

The above acts or omissions by the Honda Defendants were a producing and/or

proximate cause of Plaintiffs injuries and the resulting damages Plaintiffs seek in this suit. Plaintiffs

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pray that, following a verdict, all such damages asserted below be awarded against the Honda
Defendants.
IX.
C AUSES OF A CTION A GAINST D EFENDANTS Y USUFZAI AND K OHISTANTI
A.

C AUSE N O . 6: Negligence
78.

Plaintiffs incorporate all prior paragraphs in support of this cause.

79.

At all relevant times, Defendant Yusufzai owed a duty of care to Sarah Milburn as a

passenger in a car Yusufzai was operating. Yusufzai committed acts or omissions which constitute
negligence and were a proximate cause of the Plaintiffs injuries and damages.
80.

Defendant Kohistanti owed a duty of care to Sarah Milburn as a co-venturer or joint

venturer with Yusufzai and Uber. Kohistanti owned the Honda Odyssey and explicitly or constructively
authorized Sarah Milburn to be a passenger in the Odyssey despite its dangerous condition. Kohistanti
also authorized Yusufzai to operate the motor vehicle negligently despite that Kohistanti knew or should
have known that Yusufzai was incompetent or reckless and was not licensed to transport passengers for
pay. Yusufzai was acting within the scope of authority or agency conferred by Kohistanti when the
collision occurred. Kohistanti is responsible directly, vicariously, or by ratification of Yusfuzai negligent
acts or omissions that are a proximate cause of the Plaintiffs injuries in this case.
81.

At all relevant times, Defendants Yusufzai and Kohistanti had a duty to act as

reasonably prudent operators of a motor vehicle in like or similar circumstances, including in carrying
passengers for pay. They breached that duty through their acts and omissions, including but not limited
to:
a.

Failing to maintain a safe and proper lookout;

b.

Failing to maintain a safe speed;

c.

Failing to stop at a red stop light;

d.

Failing to comply with all traffic laws;

e.

Operating the Odyssey in this case while it was not in a reasonably safe condition; and

f.

Failing to act with ordinary care.

82.

The above acts or omissions by Yusufzai and Kohistanti were a producing and/or

proximate cause of Plaintiffs injuries and the resulting damages Plaintiffs seek in this suit. Plaintiffs
pray that, following a verdict, all such damages asserted below be awarded against Yusufzai and
Kohistanti.

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X.
A GENCY AND J OINT L IABILITY
83.

At all relevant times, the employees or agents of Uber whose conduct is implicated were

in the course and scope of their employment or acting as agents of Uber such that Uber is liable for the
conduct of those employees or agents.
84.

At all relevant times, Yusufzai was an employee or agent of Uber and its affiliates and

was acting in the course and scope of his employment or agency such that Uber is liable for Yusufzais
conduct.
85.

At all relevant times, Uber retained some control over the manner in which Yusufzai

performed his work, including telling Yusufzai the route, destination, and timing of the carriage of
Sarah, as well as the right to establish policies and safety policies, and as such Uber is vicariously liable
for Yusufzais negligence.
86.

At all relevant times, Uber had a nondelegable duty to perform its agreement to transport

Sarah and her friends with reasonable care and skill and therefore Uber is vicariously responsible for the
acts of Yusufzai.
87.

At all relevant times, Yusufzai and the Uber Entites were acting under a concert of

action as set forth in the Restatement (Second) of Torts 876(c) and therefore Uber is equally
responsible for the conduct of Yusufzai in running the red light and causing the collision that grievously
injured Sarah. Under 876(c), Uber provided substantial assistance to Yusufzai and did so in a negligent
manner as set forth above. Ubers involvement was a substantial factor in causing the tort, and
therefore Uber is equally liable for Yusufzais negligence.
88.

At all relevant times, Uber, Rasier, LLC and Uber USA, LLC and Yusufzai were

engaged in a joint enterprise because they had an agreement to transport passengers for pay, including
Sarah, a common purpose to be carried out by the enterprise, a community of pecuinary interest, and
an equal right to direct or control the enterprise.
89.

At all relevant times, Uber, Rasier, LLC and Uber USA, LLC and Yusufzai were engaged

in a joint venture or enterprise such that fundamental notions of fairness require that they be held jointly
and severally liable for all damages in this case. Moreover, Uber, Rasier, LLC and Uber USA, LLC and
Yusufzai assisted each other in or were otherwise agents of each other in negligently transporting Sarah
Milburn such that fundamental notions of fairness require that they be held jointly and severally liable
for all damages in this case.
90.

At all relevant times, Rasier, LLC and Uber USA, LLC were alter egos of Uber

Technologies, Inc. and were operated as a mere toll or business conduit of Uber. At all relevant times,

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Rasier, LLC and Uber USA, LLC were corporate forms used as a sham to perpetuate a fraud on
passengers seeking services from Uber. At all relevant times, Rasier, LLC and Uber USA, LLC were
formed to evade existing legal obligations of Uber Technologies, Inc. At all relevant times, Rasier, LLC
and Uber USA, LLC were used by Uber Technologies, Inc. to perpetuate an actual fraud regarding
Ubers involvement in transportation services and for Ubers direct benefit. As such, Uber Technology
Inc. should be directly or jointly liable for any action taken by or through Rasier or Uber USA.
XI.
A LTERNATIVE P LEADING
91.

Any claim or cause set forth above is plead in the alternative to each other to the extent

any inconsistency exists as permitted by TEXAS RULE OF CIVIL PROCEDURE 48.

XII.
P LAINTIFFS D AMAGES S OUGHT FROM A LL D EFENDANTS
A.

Damages to Sarah Milburn

92.

As a direct and proximate result of the negligent acts or omissions of the Defendants

as set out above, Sarah Milburn has suffered in the past, and in all probability will, for the remainder of
her life, continue to suffer from catastrophic, life-altering damages for which Plaintiffs now plead,
including:
a.

Physical pain and suffering sustained in the past;

b.

Physical pain and suffering that, in reasonable probability, Sarah will sustain in the
future;

c.

Mental anguish sustained in the past;

d.

Mental anguish that, in reasonable probability, Sarah will sustain in the future;

e.

Physical impairment sustained in the past;

f.

Physical impairment that, in reasonable probability, Sarah will sustain in the future;

g.

Loss of the enjoyment of life sustained in the past;

h.

Loss of the enjoyment of life that, in reasonable probability, Sarah will sustain in the
future;

i.

Loss of consortium sustained in the past;

j.

Loss of consortium that, in reasonable probability, Sarah will sustain in the future;

k.

Reasonable and necessary medical expenses incurred in the past;

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l.

Reasonable and necessary medical care expenses that, in reasonable probability, Sarah
will incur in the future;

m.

Lost wages in past; and

n.

Loss of earning capacity that, in reasonable probability Sarah will sustain in the future.

93.

All of the above damages are singularly and collectively within the jurisdictional limits

of this Court, for which Plaintiffs now plead, jointly and severally, against Defendants.
B.

Damages to John Milburn

94.

As a direct and proximate result of the negligent acts or omissions of the Defendants

as set out above, John Milburn has suffered in the past, and in all probability will, for the remainder of
his life, continue to suffer from life-altering damages arising out of the particularly disturbing events of
the catastrophic injuries suffered by his daughter Sarah for which Plaintiffs now plead, including:
a.

Loss of household services from Sarah sustained in the past;

b.

Loss of household services from Sarah that, in reasonable probability, John will sustain
in the future;

c.

Lost wages in past;

d.

Loss of earning capacity that, in reasonable probability John will sustain in the future.

e.

Mental anguish in the past; and

f.

Mental anguish that, in reasonable probability, John will sustain in the future.

95.

All of the above damages are singularly and collectively within the jurisdictional limits

of this Court, for which Plaintiffs now plead, jointly and severally, against Defendants.
C.

Damages to Carolyn Milburn

96.

As a direct and proximate result of the negligent acts or omissions of the Defendants

as set out above, Carolyn Milburn has suffered in the past, and in all probability will, for the remainder
of her life, continue to suffer from life-altering damages arising out of the particularly disturbing events
of the catastrophic injuries suffered by her daughter Sarah for which Plaintiffs now plead, including:
a.

Loss of household services from Sarah sustained in the past;

b.

Loss of household services from Sarah that, in reasonable probability, Carolyn will
sustain in the future;

c.

Lost wages in past;

d.

Loss of earning capacity that, in reasonable probability Carolyn will sustain in the future.

e.

Mental anguish in the past; and

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f.

Mental anguish that, in reasonable probability, Carolyn will sustain in the future.

97.

All of the above damages are singularly and collectively within the jurisdictional limits

of this Court, for which Plaintiffs now plead, jointly and severally, against Defendants.
XIII.
EXEMPLARY DAMAGES SOUGHT AGAINST ALL DEFENDANTS
98.

Plaintiffs allege that each and every negligent act or omission or fraud of Defendants

and its agents, as set forth above, when viewed objectively from the standpoint of policymakers,
involved an extreme degree of risk, considering the probability and magnitude of the physical harm to
others and that Defendants had actual subjective awareness of the risks involved, but nevertheless
proceeded with conscious indifference to the rights, safety or welfare of Sarah Milburn and other
passengers like her and as such, such conduct amounts to gross negligence or malice, as those terms
are defined by law, so as to give rise to an award of exemplary or punitive damages, for which Plaintiffs
now plead against Defendants. Additionally, by reason of such conduct, Plaintiffs are entitled to and
therefore assert a claim for punitive and exemplary damages in an amount sufficient to punish and deter
Defendants, and other corporations like them, from such conduct in the future.
99.

Additionally, each of the malicious and fraudulent acts of Uber independently give rise

to an award of exemplary or punitive damages, for which Plaintiffs now plead against Uber in an
amount sufficient to punish and deter Uber, and other corporations like them, from such conduct in
the future.
XIV.
P RE - JUDGMENT AND P OSTJUDGMENT I NTEREST
100.

The Milburns pray for pre-judgment and post-judgment interest to be awarded at the

maximum legal interest rates allowable under the laws of the State of Texas.
XV.
R EQUEST FOR A J URY T RIAL
101.

The Milburns request a jury trial on all triable issues within a year of this filing and

contemporaneously with the filing of this Petition submit the applicable fee.

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XVI.
R EQUEST FOR D ISCLOSURE
102.

Pursuant to TEXAS RULE

OF

CIVIL PROCEDURE 194, Defendants are requested to

disclose all of the information and materials described in Rule 194.2. The written responses to the
above requests for disclosure should conform to Rule 194.3 and the materials, documents, and/or
copies of same should be produced in compliance with Rule 194.4. The written responses, materials,
and documents are to be delivered to the ALDOUS\WALKER LLP, 2311 Cedar Springs Road, Suite 200,
Dallas, Texas 75201, as required following receipt of this request.

XVII.
103.

P RAYER
The Milburns respectfully pray that Defendants be cited to appear and answer this suit,

and that upon final determination of these causes of action, the Milburns receive a judgment against
Defendants awarding Plaintiffs damages as follows:
a.

Actual, compensatory, consequential, exemplary, and punitive damages, in an amount

in excess of the minimal limits of the Court;

b.

Costs of Court;

c.

Prejudgment interest at the highest rate allowed by law from the earliest time allowed
by law;

d.

Interest on judgment at the highest legal rate from the date of judgment until collected;
and

e.

All such other and further relief at law and in equity to which the Milburns may show
themselves to be justly entitled.

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Respectfully submitted,
/s/ Charla G. Aldous
CHARLA G. ALDOUS
State Bar. No. 20545235
[email protected]
BRENT R. WALKER
State Bar No. 24047053
[email protected]
HEATHER L. LONG
State Bar No. 24055865
[email protected]
ALDOUS\WALKER LLP
2311 Cedar Springs Rd., Suite 200
Dallas, TX 75201
Ph:
(214) 526-5595
Fax: (214) 526-5525

JAMES L. MITCHELL
Texas Bar No. 14214300
[email protected]
HEATHER V. DAVIS
Texas Bar No. 24092324
[email protected]
PAYNE MITCHELL LAW GROUP
2911 Turtle Creek Blvd, Suite 1400
Dallas, Texas 75219
Ph:
(214) 252-1888
Fax:
(214) 252-1889

ATTORNEYS FOR PLAINTIFFS

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