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A New Jersey appeals court has ruled that a couple severely injured in an Uber driver crash cannot sue Uber because their minor daughter months earlier waived their rights to a trial when she ordered food via the Uber Eats app.

A three judge panel of the Superior Court Appellate Division ruled that the couple must proceed to arbitration rather than court with their claims. The accident happened when they were passengers in an Uber car. The court found that the mother previously on Uber, and apparently their daughter on one night on the food delivery service Uber Eats app, clicked agreement with terms that require them to arbitrate most disputes with the company.

The appeals court said its ruling reflects that the state Supreme Court has recognized both the validity of web-based contracts and the importance of arbitration while protecting the rights of access to courts.

The appeals court found that Uber’s language “effectuated a waiver of plaintiffs’ right to a jury trial” even though the term “jury” was not explicitly used in the explanation on the app. The court said “magic words are not required for enforceability” and the clause “clearly intimates that disputes are resolved through arbitration and not in a court of law.”

With the ruling, Uber won its appeal of a lower court’s refusal to compel arbitration for the case involving Georgia and John McGinty.

In addition to agreeing that claims over the car accident must be arbitrated, the appeals court said that the issue of whether assent was created when the mother gave her daughter the cell phone to use to access her Uber account is also subject to arbitration.

Uber’s app is designed so that a user cannot continue using the account to access Uber’s services unless and until the updated terms of use are agreed to by clicking a box. The terms to which Georgia, the mother, agreed— either by herself or through her daughter using her Uber account—contained an arbitration provision.

The McGintys asserted that it was not Georgia but rather their minor daughter who checked that box and clicked the “confirm” button—even though it required attesting to Uber that she was at least 18 years old, She was using her mother’s phone with her mother’s permission to order food through Uber Eats on January 8, 2022, more than two months before the Uber car crash.

That clicked agreement provides that disputes that may arise, including disputes concerning auto accidents or personal injuries, will be resolved through binding arbitration “and not in a court of law.” The agreement also provides that any disputes over whether an issue should be settled by arbitration would be delegated to the arbitrator.

On March 31, 2022, the McGintys were rear seat passengers in a vehicle operated by an Uber driver who ran a red light and t-boned another vehicle. The couple suffered serious physical, psychological, and financial damages. Georgia sustained cervical and lumbar spine fractures, rib fractures, a protruding hernia, traumatic injuries to her abdominal wall, pelvic floor, and other physical injuries. She has undergone numerous surgeries and other invasive procedures. Georgia, a matrimonial attorney, was unable to work between the date of the accident and April 1, 2023.

John sustained a fractured sternum and severe fractures to his left arm and wrist. He underwent surgery with a bone graft to address the arm fractures, and has diminished use and sensation in his left wrist.

After the couple filed a complaint against Uber and the driver, Uber moved to compel arbitration. Uber maintained that when Georgia signed up for an Uber account in 2015, she agreed to Uber’s terms of use, including the arbitration agreement. Therefore, she agreed to arbitrate any disputes with Uber arising out of her use of Uber’s services.

The McGintys asserted they had no recollection of seeing the purported “clickbox” on January 8, 2022, and surmise it was clicked by their daughter who had asked if they could order food from a particular restaurant.

Uber contends the “Checkbox Consent” was activated when their daughter was getting updates on the Uber Eats food delivery driver’s progress because the application was refreshed.

The lower court denied Uber’s motion to compel arbitration, finding that the arbitration agreement was unenforceable because it “failed to clearly and unambiguously inform plaintiff of her waiver of the right to pursue her claims in a judicial forum.” In addition, the lower court held that the arbitration agreement “lacks any specificity on what the resolution would look like or what the alternative to such resolution might be.”

New Jersey courts have recognized the validity of consumer web-based contracts for decades. Clickwrap agreements are “routinely enforced by the courts” because “by requiring a physical manifestation of assent, a user is said to be put on inquiry notice of the terms assented to,” the appeals court noted.

The appeals court added that the state Supreme Court has held that while “no prescribed set of words must be included in an arbitration clause to accomplish a waiver of rights,” an enforceable arbitration clause “at least in some general and sufficiently broad way, must explain that the plaintiff is giving up his or her right to bring his or her claims in court or have a jury resolve the dispute.”

Further, the appeals court noted that the Supreme Court has emphasized that arbitration provisions are to be construed consistent with their plain language and it is not always necessary to expressly waive a jury trial or statutory claims. Moreover, the high court has repeatedly held that the thrust of the New Jersey Arbitration Act —consistent with the Federal Arbitration Act —is to favor arbitration by placing “arbitration agreements on an equal footing” with other contracts.

Governed by these standards, the appeals court said it was persuaded that the lower court erred in denying Uber’s motion to compel arbitration.

The appeals court said it was satisfied there is no ambiguity when the mother agreed to resolve disputes related to Uber’s services by binding arbitration and not in a court of law. “The provision clearly and unambiguously evidences a waiver of plaintiffs’ right to pursue any claims against Uber in a court of law and obligates plaintiffs to resolve their claims through binding arbitration,” the appeals court stated.

The couple intends to appeal. Evan Lide, lawyer for the McGintys, told that rulings in these types of cases tend to vary but that more courts are ruling for consumers. “I remind you, we’re talking about our constitutional right to a jury trial,” Lide tsaid. “That’s a Seventh Amendment right.”

The case recalls one in Florida involving Disney Corp. this past summer. Disney argued that a husband’s suit over the death of his wife who died after eating at a restaurant in Disney Springs had to be settled by arbitration because in 2019 the family had signed up for a one-month trial subscription to Disney+ streaming service. Disney’s streaming service terms include an arbitration clause.

In August, Disney withdrew its motion to forced arbitration, which had drawn swift backlash when it became public. The entertainment giant agreed to waive its right to arbitration and allow the wrongful death suit to proceed in court.