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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.


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