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"Duty of Care": Yesterday's Hearing in Utah St. Court on Rosenberg v. Google
Wednesday, March 30 2011 @ 05:44 PM EDT

Some of you expressed an interest in the case of Rosenberg v. Harwood and Google. It's another case where someone used Google Maps and trouble ensued. People seem not to pay attention any more to real life when they follow instructions on Google Maps, and so off they fly into ditches and over cliffs. Then they sue Google. Of course. One thing is undisputed: the map to Google's big pockets is clear enough. The issue is, to what degree does Google have responsibility for inaccuracies? Lawyers call that a "duty of care".

The case was filed [PDF] originally in Federal District Court back in May of 2010, accusing the driver of the vehicle that struck the plaintiff of allegedly not paying attention, which is one of those times when one recalls the old adage that pointing a finger results in three pointing back at you. But it also named Google, alleging that its "walking" instructions [I didn't know there were such, but apparently it was introduced as a beta feature at the end of July in 2008, with a warning to "use caution when walking in unfamiliar areas" -- the accident was in January of 2009] sent the plaintiff to a highway with no sidewalks. Nothing happened for months, until the judge threatened [PDF] in January to dismiss the case, and then the parties decided [PDF] it belonged in state court anyhow, so it was transferred to the Third District Court of Utah, Salt Lake County, which is, sadly, not in PACER.

A Groklaw member took the time to attend the most recent hearing on Google's motion to dismiss the state action. But I'll just mention that when I put in the two addresses mentioned in the complaint, it gives me driving instructions for a trip of 2.2 miles. Did the plaintiff really mean to walk that distance? At night? That seems a bit of a stretch. Today, the walking instructions don't take you to the rural highway, by the way. Did she get driving instructions by mistake, I wonder? Or did Google change the directions? And were walking instructions in January of 2009 still in beta? Also, why didn't she stop when she saw it was a "busy" rural highway? Was she hit instantly or only after she kept on walking and walking? The complaint doesn't say where the accident was precisely, I notice. In my experience, you usually see the accident listed as happening near the intersection of such and such a street and avenue so and so. You are supposed to be specific in complaints, so the defendant knows how to defend. Anyway, cpeterson's kindly sent us a report about the hearing.

Here's cpeterson's report, and I've interjected links to various cases referenced in the hearing, where I knew where they are:

**************************

I know this story isn't one we've been following very closely, but I thought it was interesting - and since it was local, I had an opportunity to go watch.

This is the case where Lauren Rosenberg, a resident of California, who was visiting Utah, used Google's "walking directions" on her Blackberry; this led to her attempting to cross a Park City road in the dark, where she was struck by a car, operated by Patrick Harwood. The suit names Harwood and Google as defendants, as well as ten John Doe defendants who were involved in the provisioning chain of internet access to the Google information.

The case was originally in Federal Court before Judge Dee Benson; however, the parties agreed that Utah was the proper venue. Judge Benson dismissed the case from federal court, and it was re-filed in the Utah state court system. The judge hearing the case is Judge Constandinos "Deno" Himonas.

Tuesday morning's hearing was on a Google Motion to Dismiss. Google was represented by a Mr. Meyers - (my apologies; I didn't take good notes on names because I thought I'd just read them from the docket. I got spoiled over there in federal court.) - Mr. Meyers began by noting that plaintiff's argument is both that Google should have provided less data, and then that they should have provided more.

Mr. Meyers continued that the plaintiff's brief freely admits that Google would have full First Amendment protections if they were merely the publishers of the data, but makes the claim that as authors of the data, Google has a "duty of care" which makes them liable for inaccuracies. However, he noted that the Standard & Poor's case (again, not having the documents, I'm missing citations)[PJ: I think they mean Grassi v. Moody's] showed that the same First Amendment protections cover authors as well. (The case involved a summary of a company's financial situation, which led people to purchase stock; they sued when the information was found to have been incorrect.)

He mentioned the Reno v. ACLU case, where it was ruled that First Amendment protections cannot be lessened simply because something is on the Internet. Further, quoting from Brandt v. Weather Channel (a case where a boater relied on information obtained from www.weather.com, subsequently drowned), he noted that the fact of data resulting from a user's search doesn't create any heightened duty of care on the provider.

Here Judge Himonas interrupted, saying he had a problem with the "foreseeability" issue, in particular where this walking route data was given as being "an optimized walking route" or "this is the best" or "this is the optimal route".

In a later exchange, as Mr. Meyers was telling the court that there was no financial relationship, and that Google providing the information to plaintiff held no pecuniary value to Google, the Judge again interrupted, saying that he felt that to be incorrect. In spite of there being no financial transaction specifically between Ms. Rosenberg and Google, the mere fact of her going to Google's site to get directions increased Google's advertising revenue, and therefore did place Google at a financial advantage.

On each of the precedent cases (there were quite a few more than I've mentioned) Judge Himonas wanted to know the disposition of the case. For him, it's a question not only of the ruling, but the procedural stage. If the complaint loses on the facts, the jury can throw it out. If it loses based on the law, he can throw it out on summary judgment. For what reason could the judge dismiss the case out of hand before either stage? Since that's what Google is asking for, that was the type of precedent Judge Himonas wanted to see.

Allen Young, counsel for plaintiff, did a recap of his client's case, hitting particularly on the idea of duty of care, regardless of whether Google is publisher or author, and regardless of whether the same data is disseminated to a wide audience or personalized. He used TurboTax as an example - anyone in America can go to their website and use their tax software, and the mere fact that the same data is provided to everyone wouldn't clear them of liability if they gave incorrect advice.

The judge asked Mr. Young about the large number of cases represented in his brief which referred to negligent misrepresentation, while there were no negligent misrepresentation claims being made. Mr. Young said that they would need to amend their claims. The judge indicated that he would allow that, but refused to promise that it would make any difference in the outcome.

Judge Himonas then put Mr. Young on the spot - what action, he asked, could be taken against Google that wouldn't completely undo the ability of Google or Yahoo or anybody else in the world to provide street info?

Mr. Young replied that in his opinion, Google had the ability to create an algorithm which could determine whether there were sidewalks available before offering a route as a "walking route".

The judge wryly thanked Mr. Young for his opinion, but noted that his "opinion" was not something a ruling could be based on. But, he continued, what happens when the sidewalk is unsafe? Or damaged? Or has big cracks in it? What level of detail is enough? He indicated that as far as he could see, there was no restriction that wouldn't end up "neutering" the ability of the internet to provide people with information.

He asked Mr. Young about the AAA case (a case where a woman had taken the advice of the Automobile Association of America's Motel Guide in selecting a place to stay - and got robbed & murdered at that motel). He felt that case might be most responsive to the current situation. Unfortunately, though it was quoted in plaintiff's brief, Mr. Young hadn't read it. Judge Himonas then asked Google's counsel, Mr. Meyers, about the case, since Google had also referred to it in a footnote in their brief. Unfortunately, Mr. Meyers hadn't read it either. Oooops.

So far as I could tell, it seems Judge Himonas "gets" the tech stuff. It also seems he might find this case more interesting than his usual daily fare of "DUI", "possession with intent to distribute", and "domestic violence".

He indicated to the two sides that he might be reluctant to grant the motion for dismissal, but they should be prepared for the question of summary judgement.


  


"Duty of Care": Yesterday's Hearing in Utah St. Court on Rosenberg v. Google | 198 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
"Duty of Care": Yesterday's Hearing in Utah St. Court on Rosenberg v. Google
Authored by: Anonymous on Wednesday, March 30 2011 @ 05:57 PM EDT
2.2 miles is nothing, I walk more than that to work

[ Reply to This | # ]

Please group corrections here ...
Authored by: nsomos on Wednesday, March 30 2011 @ 06:01 PM EDT
For some corrections, the title block alone may be sufficient ...
e.g. eror -> error

[ Reply to This | # ]

Pointing a finger results how many pointing back?
Authored by: BJ on Wednesday, March 30 2011 @ 06:06 PM EDT
When I point a finger, I have at most three pointing back at me.

bjd


[ Reply to This | # ]

I know someone who got themselves into trouble while reading a paper map
Authored by: kh on Wednesday, March 30 2011 @ 06:06 PM EDT
Why do people expect electronic maps are somehow better than paper maps?

[ Reply to This | # ]

Plaintiff's duty of care
Authored by: tknarr on Wednesday, March 30 2011 @ 06:11 PM EDT

I think a relevant question is also this: "Does the plaintiff have a duty of care as well?". Common sense tells me that I shouldn't be taking an unfamiliar route in the dark without being extremely careful and aware of where I'm going. Common sense tells me that I shouldn't go walking up a freeway on-ramp and across a freeway no matter what the directions said to do. Is there any point, legally, when the correct statement from the judge to the plaintiff is, to borrow from a line from a movie, "The court regrets to inform the plaintiff that he suffered his loss because he was stupid."?

[ Reply to This | # ]

"use caution when walking in unfamiliar areas"
Authored by: Laomedon on Wednesday, March 30 2011 @ 06:23 PM EDT
Google has changed the warning to read:
Walking directions are in beta.
Use caution This route may be missing sidewalks or pedestrian paths.


Incidentally, the current walking instructions no longer include the "un-safe" highway.

[ Reply to This | # ]

OT here
Authored by: SpaceLifeForm on Wednesday, March 30 2011 @ 06:58 PM EDT
Please make any links clickable.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

NewsPicks commentary here
Authored by: SpaceLifeForm on Wednesday, March 30 2011 @ 07:03 PM EDT
Please note in the title line which article you are
referencing and include a link for future readers.

---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

COMES notes here
Authored by: SpaceLifeForm on Wednesday, March 30 2011 @ 07:05 PM EDT


---

You are being MICROattacked, from various angles, in a SOFT manner.

[ Reply to This | # ]

Thank you cpeterson and PJ
Authored by: rsteinmetz70112 on Wednesday, March 30 2011 @ 07:14 PM EDT
Thank you for taking the time to report on this. It is an interesting case.

BTW from personal experience Google acts fairly quickly on reports of error in
its maps.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Adwords Bite Back
Authored by: Anonymous on Wednesday, March 30 2011 @ 07:49 PM EDT
>> In spite of there being no financial transaction specifically between
Ms. Rosenberg and Google, the mere fact of her going to Google's site
to get directions increased Google's advertising revenue, and therefore
did place Google at a financial advantage. <<

Admitting my unfamiliarity with Blackberry or Google Maps, how do you
fit ads on a mobile screen along with the desired information? Or,
conversely, why would anyone pay Google if the product or service
is not advertised to the instant user?

[ Reply to This | # ]

The AAA decision looks good for Google
Authored by: jbb on Wednesday, March 30 2011 @ 08:06 PM EDT
The AAA decision cited by the judge and linked to by PJ looks really good for Google position. Here is what the decision said about a previous case regarding duty of care:
It occurs to us that if those closely connected with the safety of premises, such as hired security guards, are not subject to a duty even to warn of possible danger represented by nearby third persons not on the premises, then a fortiori those having no particular connection with the premises, such as Auto Club, have no duty of care.
In the cases they cited, duty of care was tied to property ownership. Even someone leasing a property had no duty of care. The AAA case and the cases cited in the decision were all about assaults and murders, not car accidents. ISTM that, if anything, there is even less duty of care regarding the prediction of a possible car accident than there is for predicting a possible assault.

---
[ ] Obey DRM Restrictions
[X] Ignore DRM Restrictions

[ Reply to This | # ]

News Picks Items
Authored by: dio gratia on Wednesday, March 30 2011 @ 09:12 PM EDT
If you expect that your News Pick will be displaced off the side bar a clickable
link would be handy.

[ Reply to This | # ]

Idiocracy
Authored by: Anonymous on Wednesday, March 30 2011 @ 10:38 PM EDT
What I don't get is this idea that when someone in the US does something stupid
it has to be someone else's fault.
Not only that; they must pay you for their 'fault' to protect you against
yourself.
What's happened to taking responsibility for your actions and excercising due
caution?
Indeed, one could even make the argument that, in the US, it pays to be a bit
careless - you might have a standing to sue some company and make a buck (the
remainder after the lawyers take their cut).
This 'reverse Darwinism' can't be good for society, surely...?

[ Reply to This | # ]

"Duty of Care"
Authored by: rsteinmetz70112 on Wednesday, March 30 2011 @ 10:47 PM EDT
As an Architect, I have a "Standard of Care" that is generally defined
as "the ordinary and reasonable degree of care required of a prudent
professional under the circumstances. Defined as what a reasonably prudent
architect, in the same community at the same time, facing the same or similar
circumstances, would do. It is the measure by which behavior is judged in
determining legal duties and rights". It does not guarantee perfect
results. It is not a standard of Strict Liability.

I wonder what "duty of care" standard an Internet Map Service Provider
is expected to follow.

---
Rsteinmetz - IANAL therefore my opinions are illegal.

"I could be wrong now, but I don't think so."
Randy Newman - The Title Theme from Monk

[ Reply to This | # ]

Why not sue everybody
Authored by: Anonymous on Wednesday, March 30 2011 @ 10:52 PM EDT
The suit names Harwood and Google as defendants, as well as ten John Doe defendants who were involved in the provisioning chain of Internet access to the Google information.
She seems to be suing the world+dog on this. Why is RIM, the makers of her Blackberry, not included?
And, while we're at it, why not the builders and operators of the GPS-satellites, as well as the state of Utah for the road conditions and lack of a high-voltage fence to prevent her from walking on to a free way...??
Maybe she could also sue her parents for making her stupid and her teachers in school for not preparing her properly for life?

[ Reply to This | # ]

"Duty of Care": What about getting one-way streets wrong?
Authored by: Anonymous on Thursday, March 31 2011 @ 12:59 AM EDT
My house is on a city street which runs north to south. The street is wide
enough for one lane traffic and parking on the west side. The street is one-way
southbound. The south end of the street is a T intersection with a traffic
light, at a much busier east-west street. Someone turning the wrong way into the
street from that end could conceivably cause a serious accident by having a
head-on collision with a car going south in the "left" lane of the
one-way street.

And yet, at least until quite recently the directions at Google maps for how to
get from my house to practically anywhere instruct me to go out of my driveway
and head north on the street in front of my house, which is the wrong way on a
one-way street. I know this to be true because sometimes I have looked for
directions on Google maps, too.

I do think the present case about the pedestrian is a bit extreme, and the
pedestrian indeed failed to observe common sense.

However, if I were in a car in my own neighborhood and if I were hit by a car
going the wrong way on the street and the driver was a stranger who had been had
been relying upon Google maps for directions, I might consider suing Google,
myself. The fact that the street is a small street in a small city in the
insignificant state of Alabama does not make much difference about
responsibility. Things like that really do have to be gotten right. Failure to
do so could get totally innocent people killed or injured.

I guess the moral is that there is a line of responsibility somewhere. I am not
sure where it is or ought to be. But it really is there and is not something
imaginary.

[ Reply to This | # ]

"Duty of Care": Yesterday's Hearing in Utah St. Court on Rosenberg v. Google
Authored by: Anonymous on Thursday, March 31 2011 @ 05:02 AM EDT
Here Judge Himonas interrupted, saying he had a problem with the "foreseeability" issue, in particular where this walking route data was given as being "an optimized walking route" or "this is the best" or "this is the optimal route".
Since when does optimized == safest?

j

[ Reply to This | # ]

  • Safest != Safe - Authored by: Anonymous on Thursday, March 31 2011 @ 02:56 PM EDT
"Duty of Care": Yesterday's Hearing in Utah St. Court on Rosenberg v. Google
Authored by: Anonymous on Thursday, March 31 2011 @ 07:01 AM EDT
I think this is a prime example of the failure of US society.
Nobody wants to take responsibility for their own actions,
regardless of how stupid they are. And, those who actually
obey rules and laws out of respect are definetly in the
minority. Just one more turn in the blue swirly before we
go down the drain.

[ Reply to This | # ]

AAA Case
Authored by: maroberts on Thursday, March 31 2011 @ 07:46 AM EDT

If the judge is using the AAA case as a guideline, it looks like Google has a slam dunk victory. Strange their brief didn't come across it....

"fails to state a cause of action because Auto Club owed Yanase no duty of care with respect to neighborhood safety or security measures...."

[ Reply to This | # ]

"Duty of Care": Red Light, Green Light
Authored by: Anonymous on Thursday, March 31 2011 @ 05:18 PM EDT
What if the satellite image on Google Maps shows a green light? Does said idiot
go through the current red light because a picture of the light shows it was
green?

vettemph

[ Reply to This | # ]

USA: Where you get paid for being stupid
Authored by: Anonymous on Thursday, March 31 2011 @ 07:35 PM EDT
Title says it all...

[ Reply to This | # ]

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