Injured Pedestrian Can’t Sue Google for Providing Faulty Map Information — Rosenberg v. Harwood
[Post by Venkat Balasubramani]
Rosenberg v. Harwood, No. 100916536 (Utah District Court; May 27, 2011) [pdf]
Lauren Rosenberg was struck by an automobile while walking along a rural highway “with heavy traffic and no sidewalks.” She sued the driver of the car but she also sued Google, alleging that Google negligently provided directions and failed to warn that the highway was not suitable for pedestrians. The court grants Google’s motion to dismiss. Although Google argued that it was entitled to First Amendment protection for its publication of information, the court does not reach the First Amendment question, and dismisses the claims under traditional negligence standards.
Google did not owe Rosenberg a duty: In order to assert a claim for negligence against Google Rosenberg had to show that Google owed her a duty. The court applies a four factor test to determine whether Google owes Rosenberg a duty and concludes that Google does not owe a duty. Rosenberg did not have a special relationship with Google. Rosenberg argued that in other cases courts have held service providers liable for negligently providing services to customers, but the court says that this duty is minimal or non-existent when a publisher or other information provider “publishes information to the general public.”
The court also notes that the fact that an injury is unlikely to occur counsels against finding a duty. Although Rosenberg alleged that an accident is more likely to occur along a rural highway such as the one she was on, the court says that an accident involving a pedestrian likely involves the pedestrian’s own breach of their duty to yield to cars on the road:
it is clear that Google was not required to anticipate that a user of the Google Maps service would cross the road without looking for cars . . . and that, absent negligence on the user’s part, an injury while crossing the road would be unlikely.
Google’s duty does not extend to preventing or warning against harm that is likely to occur through a plaintiff’s breach of her own duty.
Policy considerations weigh against finding a duty: Rosenberg argued that since Google provided information on a one-to-one basis, the policy considerations for protecting publishers are not applicable when it comes to Google. The court disagrees with this as well:
[t]o claim that Google provided the information only to one individual, and therefore is not entitled to the protections afforded publishers, ignores the realities of modern society and technology. As Google notes, the Complaint itself states that the information provided on the Google Maps service “is readily available via the internet” . . . and any individual who enters the same starting and ending points will obtain the same walking directions that were provided to Rosenberg. While a user of the service is able to customize the results of his or her search, the exact same information provided to Rosenberg is readily available to any individual who uses the same search terms as Rosenberg, and anyone who obtains those directions is free to disseminate the search terms and directions to others. Given these facts, it is difficult to imagine that information could be disseminated more broadly to the public. Therefore, Google is clearly a publisher because it makes all of the information on the Google Maps service available to the public worldwide, and the fact that a user of the Google Maps service obtains customized search results does not remove the protections afforded to any other publisher of information to the public.
If Google, as a publisher which widely disseminates information, could be held liable for providing faulty information, this could lead to unlimited liability for Google. Rosenberg argued that the burdens to Google could be ameliorated if Google posted “a statement that included a warning of dangers of which Google knows or should know along a potential route,” but the court notes that this would dramatically increase the burden on Google. Under Rosenberg’s theory, Google would have to investigate and warn about all foreseeable risks, “which might include negligent drivers, drunk drivers, dangerous wildlife, sidewalks or roads in disrepair, lack of lighting, and other risks that might only exist during certain times of day.” This burden would be difficult, if not impossible for Google to bear. The court also looks to the social utility of the service provided by Google (under the benefit/burden analysis formulated by Learned Hand) and finds that the service provided by Google has a high social value.
This is a nice win for Google as well as an endorsement of the social utility of its services. Plaintiffs have sought to sue Google for torts arising out of Google’s services, including street view (Boring v. Google) and directory services (Harris v. Google). To date, these efforts have been largely unsuccessful.
The court recognizes that the practical result of a win for plaintiff in this case would be a flood of similar litigation which could ultimately force Google to include warnings or disclaimers or to offer its service in a different (and potentially less useful) form. Many of the online service provider cases understandably center around Section 230, and this case is a good reminder that even outside the Section 230 universe, it’s not always easy to hold an online service provider liable. In addition to the difficulties in showing duty, Rosenberg would have had a serious causation hurdle as well.
While the court lets Google off of the hook in this case, the result may have been different if Rosenberg had asserted claims against a GPS provider. A GPS provider typically offers a paid service and arguably communicates with its customers on a one-to-one basis. It’s unclear as to whether this would materially alter a court’s analysis, but a GPS provider would not necessarily receive the same treatment as Google did in this case.