FIFTH DIVISION
MILLER, P. J.,
MERCIER and COLVIN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
May 17, 2021
In the Court of Appeals of Georgia
A21A0131. THORNTON v. UBER TECHNOLOGIES, INC. et al.
COLVIN, Judge.
After a driver for Uber Technologies, Inc. (“Uber”), murdered Ryan Thornton
in 2018, his mother (“Appellant”) filed this action for wrongful death and negligence.
Appellant now brings this interlocutory appeal from the trial court’s order compelling
arbitration. On appeal, Appellant argues that the trial court erred by finding that, as
a matter of law, her son assented to an arbitration agreement contained in Uber’s
terms and conditions. For the following reasons, we reverse the trial court’s order and
remand for proceedings consistent with this opinion.
Whether a valid and enforceable arbitration agreement exists is a
question of law for the court. OCGA § 13-2-1. We therefore review a
trial court’s order granting or denying a motion to compel arbitration de
novo. The appellees, as the parties seeking arbitration, bear the burden
of proving the existence of a valid and enforceable agreement to
arbitrate. And the validity of an arbitration agreement is generally
governed by state law principles of contract formation.
(Citations and punctuation omitted.) McKean v. GGNSC Atlanta, LLC, 329 Ga. App.
507, 509 (1) (765 SE2d 681) (2014).
The record shows that Uber is a technology company that develops software
applications (“apps”) for transportation and food delivery services. To use Uber’s
services, an individual must download the Uber app on his smartphone and create an
account with Uber. When creating an Uber account on a smartphone, the app directs
a user to a screen on which the user is prompted to provide contact information and
a password for the account. The next step of the account registration process directs
the user to a payment screen where the user is prompted to input his payment
information.
The version of the Uber app at issue in this case prompted a user to either enter
his credit card information or link his PayPal account. The top portion of the payment
screen contains fields for the user to input his credit card information. The middle
portion of the screen contains a button labeled “Register” and a button to link a
PayPal account. Underneath the two buttons, near the bottom of the screen, small,
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dark gray text reads “BY CREATING AN UBER ACCOUNT, YOU AGREE TO
OUR TERMS & CONDITIONS AND PRIVACY POLICY.” The words “TERMS
& CONDITIONS AND PRIVACY POLICY” are presented as a hyperlink in blue,
underlined text. If clicked on, a user would be directed to a document containing
Uber’s terms and conditions for users of its services. The terms and conditions
explain that a user is entering into a contract with Uber and is bound by the terms and
conditions through the user’s access and use of Uber’s services. Uber’s terms and
conditions contain an arbitration clause, under which the user agrees to settle any
disputes arising out of the use of Uber’s services.
Appellant presented evidence that a user on a smartphone with an Android
operating system experienced an on-screen keyboard appearing at the bottom of the
screen when they clicked on the information field at the top of the payment screen to
enter a credit card number. In that circumstance, the on-screen keyboard concealed
the text and hyperlink informing the user of Uber’s terms and conditions but did not
conceal the “Register” button.
Uber’s records reflect that Thornton created an account using his smartphone
with an Android operating system on May 15, 2016, and that he entered credit card
information as his form of payment. Thornton began using Uber’s services in July
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2016. In an affidavit, an Uber paralegal averred that Uber sent an email on November
22, 2016 to inform Thornton that it had updated the terms and conditions associated
with the use of its services, including portions of the arbitration agreement. After
November 2016, Thornton used Uber’s services 41 more times.
After his death, Appellant, as Thornton’s surviving parent, filed suit for
wrongful death and various claims of negligence against Uber. Uber filed a joint
motion to dismiss and motion to compel arbitration, requesting that the trial court
enforce the arbitration clause contained in its terms and conditions. The trial court
granted the motion to compel arbitration and stayed the case, finding that Thornton
had assented to Uber’s arbitration clause contained in its terms and conditions.
Appellant then sought and we granted interlocutory review of the trial court’s order.
1. Appellant argues that the trial court erred by finding that Thornton assented
to Uber’s terms and conditions when the terms were inconspicuous and concealed by
the onscreen keyboard. Because questions of fact remain on whether the on-screen
keyboard concealed the terms and conditions, we agree.
“The consent of the parties being essential to a contract, until each has assented
to all the terms, there is no binding contract[.]” OCGA § 13-3-2.
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In determining whether there was a mutual assent, courts apply an
objective theory of intent whereby one party’s intention is deemed to be
that meaning a reasonable man in the position of the other contracting
party would ascribe to the first party’s manifestations of assent, or that
meaning which the other contracting party knew the first party ascribed
to his manifestations of assent. Further, in cases such as this one, the
circumstances surrounding the making of the contract, such as
correspondence and discussions, are relevant in deciding if there was a
mutual assent to an agreement. Where such extrinsic evidence exists and
is disputed, the question of whether a party has assented to the contract
is generally a matter for the jury.
(Citations omitted.) Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 597
(1) (693 SE2d 873) (2010) (affirming the denial of a motion for j.n.o.v. where “[t]he
evidence on the issue of contract formation was highly controverted and presented
genuine issues of fact for the jury’s resolution”).
(a) Appellant argues that Uber’s terms and conditions were so inconspicuous
on the payment screen that Thornton could not have reasonably assented to the terms
as a matter of law. We disagree.
Where one who can read signs a contract without apprising himself of
the contents, otherwise than by accepting representations made by the
opposite party, with whom there exists no fiduciary or confidential
relation, he cannot defeat an action based on it, or have it canceled or
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reformed, on the ground that it does not contain the contract actually
made, unless it should appear that at the time he signed it some such
emergency existed as would excuse his failure to read it, or that his
failure to read it was brought about by some misleading artifice or
device perpetrated by the opposite party, amounting to actual fraud such
as would reasonably prevent him from reading it.
(Citation and punctuation omitted.) Lovelace v. Figure Salon, 179 Ga. App. 51, 52
(1) (345 SE2d 139) (1986).
The question of assent to a smartphone app’s terms and conditions is an issue
of first impression for this Court, but cases from other jurisdictions are instructive.
Applying California law, which requires conspicuous notice of terms of an
agreement, the United States Court of Appeals for the Second Circuit found that a
user manifested his assent to an arbitration agreement in a similar version of the Uber
app, where the language regarding the terms and conditions appeared on the payment
screen “in a small font” and “the dark print contrast[ed] with the bright white
background, and the hyperlinks [were] in blue and underlined.” (Footnote omitted.)
Meyer v. Uber Techs., Inc., 868 F.3d 66, 78 (I) (B) (1), 80 (I (B) (2) (2d Cir. 2017)
(user assented to Uber’s terms of service where “the Payment Screen provided clear
notice that there were terms that governed [a continuing] relationship”). But compare
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Cullinane v. Uber Techs., Inc., 893 F.3d 53, 63-64 (IV) (1st Cir. 2018) (under
Massachusetts law, no assent to Uber’s terms of service where terms were “displayed
in a dark gray small-sized non-bolded font against a black background” and the
“hyperlink did not have the common appearance of a hyperlink”). In its ruling, the
Meyer Court observed that “a reasonably prudent smartphone user knows that text
that is highlighted in blue and underlined is hyperlinked to another webpage where
additional information can be found” such that the “reasonably prudent smartphone
user would have constructive notice of” the hyperlinked terms and
conditions–including the arbitration clause. Id. at 78-79 (I) (B) (1).
Here, the top of the payment screen directs a registrant to enter his payment
information. At the bottom of the payment screen with a white background, a
statement in small, dark gray font reads “BY CREATING AN UBER ACCOUNT,
YOU AGREE TO OUR TERMS & CONDITIONS AND PRIVACY POLICY.” The
language “Terms & Conditions and Privacy Policy” is presented as a blue, underlined
hyperlink.1 These terms are clear against the white background and the blue hyperlink
1
This type of agreement, known as a browsewrap agreement, “does not require
the user to manifest assent to the terms and conditions expressly[.]” (Citation and
punctuation omitted.) Hines v. Overstock.com, Inc., 668 F.Supp.2d 362, 366 (I) (E.D.
N.Y. 2009) (“On the internet, the primary means of forming a contract are the so-
called ‘click-wrap’ (or ‘click-through’) agreements, in which website users typically
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draws attention to the terms and conditions, such that a reasonable smartphone user
would know that more information would be found if he clicked upon the hyperlink.
Because failure to read does not excuse a party’s obligations under a contract, under
the objective standard of assent, Thornton could have been bound by Uber’s terms
and conditions after registering his account. See McDavid, 303 Ga. App. at 597 (1);
Lovelace, 179 Ga. App. at 52 (1).
(b) Even if Thornton’s assent to Uber’s terms and conditions could have been
established through the registration process, Appellant argues that the trial court erred
in finding assent as a matter of law because the potential concealment of the terms
and conditions by the on-screen keyboard raises a question of fact. We agree.
Under Georgia’s objective theory of intent, Thornton cannot have assented to
Uber’s terms and conditions if he never had the opportunity to see them. Not only has
Uber acknowledged that Thornton used a credit card instead of Paypal when
registering for the Uber app, its counsel also conceded that the keyboard “may have
momentarily covered” the text with the link to the terms and conditions. This
click an ‘I agree’ box after being presented with a list of terms and conditions of use,
and the ‘browsewrap’ agreements, where website terms and conditions of use are
posted on the website typically as a hyperlink at the bottom of the screen”) (citation
omitted).
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evidence raises questions of whether the on-screen keyboard concealed the text so
that the terms and conditions were either never displayed or displayed for an
unreasonably short amount of time such that Thornton would not have seen them.
Because these questions of material fact remain, the trial court erred by finding that
Thornton assented to the arbitration agreement as a matter of law. See McDavid, 303
Ga. App. at 597 (1); Murphy v. Hosanna Youth Facilities, Inc., 683 F.Supp.2d 1304,
1312-1315 (II-III) (N.D. Ga. 2010) (denying motions to compel arbitration and for
summary judgment because issues of material fact pertaining to assent by an agent
required a jury determination).
2. Uber argues that, even if Thornton did not assent to the terms and conditions
upon registration, his continued use after Uber sent him an email updating its terms
and conditions constitutes assent. We disagree because a question of fact exists
regarding whether Thornton received the updated terms and conditions.
“[V]alid contracts, including contracts containing arbitration clauses, may be
formed by a party’s continued use or acceptance of services without objection.”
(Citations omitted.) Honig v. Comcast of Ga. I, LLC, 537 F.Supp.2d 1277, 1283-84
(II) (A) (N.D. Ga. 2008) (user assented to arbitration clause where cable subscriber
agreement was handed to user upon installation and user continued to use cable
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services), citing Comvest, LLC v. Corp. Sec. Group, Inc., 234 Ga. App. 277, 280 (3)
(507 SE2d 21) (1998) (“Parties may become bound by the terms of a contract, even
though they do not sign it, where their assent is otherwise indicated, such as by the
acceptance of benefits under the contract, or the acceptance by one of the
performance of the other”) (punctuation and footnote omitted).
In Comvest, a securities group and an investment company entered into
agreement to sell stock at an initial public offering. Comvest, 234 Ga. App. at 278.
The securities group opened an account for the investment company and subsequently
mailed a customer agreement containing an arbitration provision to the president of
the investment company. Id. Although the president of the investment company did
not sign and return the customer agreement to the securities group, this Court found
that the investment company assented to the arbitration provision through its
continued performance under the agreement. Id. at 280 (3).
The line of cases pertaining to assent through continued use of services turn on
evidence that the terms were received by the party against whom enforcement was
sought.2 See Comvest, 234 Ga. App. at 279-280 (2) (affirming the trial court’s finding
2
Uber argues that, under the mailbox rule, receipt of the subsequent email it
sent to Thornton is presumed. See American Exp. Travel Related Services Co. v.
Berlye, 202 Ga. App. 358, 360 (2) (414 SE2d 499) (1991). But Georgia courts have
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that customer was bound to arbitration agreement when issue of fact as to receipt was
resolved through some evidence that the terms were mailed and evidence that
customer was knowledgeable of industry practices that required submitting disputes
to arbitration); Honig, 537 F.Supp.2d at 1283 (II) (A) (uncontroverted evidence that
cable user received subscriber agreement where the agreement was handed to the user
and where the user signed a work order acknowledging receipt).
Here, Uber presented an affidavit from its paralegal, who averred that Uber’s
records reflect that it sent an email to Thornton on November 22, 2016, informing
Thornton that it had updated its terms and conditions, including portions of the
arbitration agreement. The email also stated that “if you use our app or other services
on or after [November 21, 2016] you’re confirming you’ve read and agree to the
updated Terms.” Nonetheless, neither the affidavit nor the exhibits provided by Uber
list the email address to the which email was sent. In fact, it appears that an email
address was redacted from Uber’s exhibit showing that an email was sent, which
prevents us from verifying that the email address belonged to Thornton. There is also
not applied any presumption of delivery or receipt to other forms of communication,
such as telegram or email. See, e.g., Jackson Co. v. Farmers Peanut Co., 61 Ga. App.
248, 252 (6 SE2d 428) (1939) (no presumption of delivery to communication by
telegram).
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no record evidence that the email was delivered to Thornton. We thus conclude that
a question of material fact remains as to whether Thornton received the subsequent
email and assented to the updated terms and conditions.3 See Turfgrass Group, Inc.
v. Ga. Cold Storage Co., 346 Ga. App. 659, 667-668 (816 SE2d 716) (2018)
(questions of fact remained as to assent where company presented evidence that it
mailed terms and conditions as a routine business practice but presented no evidence
that the terms and conditions at issue were mailed to customer); Governor’s Towne
Club, Inc. v. Caffrey Const. Co., 273 Ga. App. 284, 287 (1) (614 SE2d 892) (2005)
(questions of fact remained as to mutual assent where contract terms were emailed to
a third party but the evidence did not affirmatively show whether the email was
delivered to the contracting party).
Judgment reversed. Miller, P. J., and Mercier, J., concur.
3
We note that OCGA § 10-12-15 (b) may have some bearing on whether
Thornton received the email as a matter of law; however, this issue was not raised in
the proceedings below. Id. (“Unless otherwise agreed between a sender and the
recipient, an electronic record is received when: (1) It enters an information
processing system that the recipient has designated or uses for receiving electronic
records or information of the type sent and from which the recipient is able to retrieve
the electronic record; and (2) It is in a form capable of being processed by that
system”). Further, there was no evidence in the record as to which email address or
in what form the email was sent.
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