By: Meena Natarajan and Gregory Shapiro
Rosenberg v. Google
Case
Lauren Rosenberg, the Plaintiff, used Google maps application on her Blackberry to get walking directions in Salt Lake County. Google maps suggested walking directions through a rural highway that required her to cross State Route 224, which has no sidewalks or pedestrian crossings. Rosenberg followed the directions at night, and while crossing SR 224, was hit by an automobile negligently driven by the Patrick Harwood. She was seriously injured. The Blackberry mobile application for Google maps did not present the warning that usually accompanies walking directions on the Google maps website. The warning states that walking directions are Beta and the user needs to use caution. Rosenberg alleges that Google was negligent in its walking directions and sued both Patrick Harwood and Google for negligence.
Google brought a motion to dismiss Rosenberg’s claim under first amendment protections and the premise that it did not owe Rosenberg a duty, a requirement for claims of negligence to hold valid. The court ruled in its favor stating that Google did not owe Rosenberg a duty as Google had not entered a contractual or fiduciary relationship with Rosenberg, a special relationship did not exist between Google and Rosenberg, and further, that any relationship that did exist was highly attenuated as Google was a publisher and not a service provider, and therefore could not be held liable for information it made available to the public at large. The other factor that determines where there is a duty is whether the harm was foreseeable. The court ruled that Google could not possibly foresee that a user of its information would be negligent in not looking for cars while crossing the road and that this particular road was more likely to cause injury than any other route, and that Rosenberg was negligent.
Rosenberg v. Google case and it’s intersection with Cardozo v. Ellie’s Book and Stationery, Inc.
Rosenberg contested Google’s motion to dismiss stating that the underlying premise upon which Google was making its claims was flawed – that Google was a publisher and not a service provider. Unlike in the Cardozo v. Ellie’s Book and Stationary, Inc case, whether Google was acting as a publisher or a service provider is less clear. Service providers are often held liable for defection information they provide and publishers have historically been held not responsible for the ideas contained in any material they offer. However, according to Rosenberg, Google does not provide walking directions to the public at large as the user has to input their unique location and request directions based on that location, and that Google uses its expertise in coming up with customized directions. Rosenberg states that this implies a one on one relationship and the use of discernment and expertise on Google’s part much like that with a service provider. However, the court ruled that as any one can input the same start and end point and that if they did so, they would get the same directions as Rosenberg was given, Google potentially is publishing to the public at large and that a one on one relationship does not exist between Rosenberg and Google. The court also states that to require Google to physically check each road and geography in its map for safety is an overwhelming burden to impose on Google, just like it would be for a publisher to go through and check all the information in the material it publishes for veracity or defamation etc, a task that they are not trained to conduct. Finally, the court also rules in favor of Google as the overall benefit to society that the information Google provides outweighs the harm that some individuals may suffer, and that imposing negligence on Google would diminish the duties and responsibilities of pedestrians.
Implications for online information providers
In the Cardozo v. Ellie’s Book and Stationary case, implied warranties do not hold when the publisher explicitly modifies or excludes the warranty. In maps, Google expressly states that walking directions are Beta and that the user needs to exercise caution is following those directions. However, the fact that this warning was missing in its mobile application for Blackberry means that Google did not modify any implied warranty for users who use maps solely on their mobile application and also, it may not be reasonable to require the user to remember that there was a warning on the website and to discern that it still holds at the time of use on the mobile application. How does information differences across platforms implicate the information provider in an online environment?
It is important to note that many online providers of information do not publish information in the same way that a book publisher publishes books. Given the interactivity online, the information that a user obtains is often times customized to the user based on what kind of information the user requests and inputs. This relationship mimics that of a service provider in offline environments. Although, the same information may be given to many people if they all input the same request, even service providers offline may provide the same information to a number of people based on the similarity of their requests. This raises the question of whether interactive websites that customize information for users act as publishers or service providers and consequently, what kind of legal protection is afforded to such providers.
Finally, given that online information providers most often provide information for free, there is no contract or explicit duty to the user. However, internet business models differ from book publishing in that they often involve paid advertising. What kind of a relationship does the user enter with an online information provider when increasingly, business model do not require end-users to pay for information?
Rosenberg v. Google case and it’s intersection with Aetna v. Jeppesen
Comparing Aetna v. Jeppesen to Rosenberg v. Google brings up some interesting issues that both cases share.
One of the main issues that arises in the Aetna v. Jeppesen case is the issue of negligence versus strict liability. Negligence requires that the defendant actually do something (or doesn’t do something specific) in error that harms the plaintiff. Strict liability, on the other hand, does not require the the defendant do something wrong, but points to the fact that the defendant’s actions themselves were risky and although they were not necessarily the cause of the harm that the defendant suffered, they should still be held responsible in some way. Strict liability is a way for the defendant to say “I’ve been harmed, and even though no one is directly to blame, I still deserve retribution, and since the plaintiff was a part of the harm, they should be the ones to give me that retribution.” in Aetna v. Jeppesen, the US District Court for the District of Nevada had previously ruled that Jeppesen would pay for 80% of the retributive cost while Bonanza would pay 20% of the retributive cost. This was because the court had ruled that Jeppesen (the makers of the airport chart) was negligent and Bonanza (the airline who trained their pilots) was strictly liable. This basically said that Jeppesen’s charts were mostly at fault for the crash of the airplane because the airport charts were defective and they were to blame for that defect, but Bonanza, by not warning their pilots about the possible defect, were also partially (albeit minorly) responsible for the crash. The outcome of this case was that the United States Court of Appeals, Ninth Circuit ruled that this was actually not reasonable.
In comparing this to Rosenberg v. Google, Rosenberg sued Google on four counts, with 3 of them having to do with negligence or strict liability. The first was General Negligence, the second was Strict Liability – Defective Design, and the third was Strict Liability – Failure to Warn.
In terms of general negligence, in order for that to hold true, Google would have had to owe Rosenberg a “duty” that would “rise to a negligence claim” that owed the defendant the duty of care or be somehow defined as an obligation of some sort. Rosenberg claimed that Google negligently provided a service to her as customer (and therefore had a “duty” to her) – however, the court stated that since “Google provided the same information to Rosenberg that is available to limitless other users of the Google Maps service… [there] does not warrant… any heightened duty on Google.” Basically, Google and Rosenberg did not have a “special, fiduciary, or contractual relationship… that would give rise to a duty of protection” and therefore Google does not owe Rosenberg anything in terms of that issue. In comparison to the Aetna v. Jeppesen case, this is similar in that the 9th Circuit decided that the pilots of Bonanza were not completely free from negligence because they were misled by the differences in scale on the map they were using. In my opinion, the court implied that the pilots did indeed have a “heightened duty” to pay attention to the maps and the possible differences that might have existed. The issue of “duty” in relationships occurs in both of these cases, just in different ways: Rosenberg and Google’s relationship was in question and Bonanza’s Pilots and the Jeppesen’s Maps relationship was in question – both dealing with the issue of a duty that needed to exist in order for negligence to play a role in the outcome. Although the court did not specify just how much “negligence” was to be put on the pilots of Bonanza, they stated that they did indeed share some negligence and were not only “strictly liable” as was previously decided.
In terms of the strict liability – defective design and the strict liability – failure to warn issues, Rosenberg actually consented to dismissal of these claims because they were based on product liability. The reason these were not applicable in this case, but were applicable in the Aetna v. Jeppesen case was that in Aetna, the “product” that was in question was a aeronautical chart that was used for the landing of plane, while in Rosenberg, the product in question was an online map for walking somewhere – two very different products with very different ownership groups, as well as very different customers. As in the Cardozo v. True case (see above), where product liability was exemplified in the way that publishers of books were not liable for the material inside their books but only for the physical books themselves and Google was liable for the maps it published (but issues of social benefit outweighed its liability), Jeppesen was told by the court that their mapping products were in fact to be treated as products for strict liability purposes. According to the Pamela Samuelson paper “Liability for Defective Electronic Information,” the court decided that the aeronautical charts were “highly technical tools” because they resembled compasses, and like compasses, were “mass produced for commercial purposes.” The reason the charts are not treated like Google’s maps is that Customers of Jeppsen (the pilots) needed to rely on the charts as well as “Jeppsen’s expertise as much as consumer’s might rely on any other manufacturers’ expertise” in order to properly and safely do their job and receive the full benefit of the product. All in all, Jeppesen’s aeronautical maps were held to a product strict liability claim because they failed in their design goal of graphically representing information that was needed to be readily understandable for its customer.
Further questions to consider: Does Google provide “products” that would be held liable to a strict liability-product claim? What other relationships contain “duty” that is strong enough to be considered for a negligent claim?
References:
Pamela Samuelson (1993) Liability for defective electronic information, Legally Speaking, ACM, Vol 36 (1) – http://people.ischool.berkeley.edu/~pam/papers/acm_vol36_1_1993.pdf
Rosenberg v. Google, Memorandum Decision – http://www.onpointnews.com/docs/GoogleMaps_opin.pdf
Rosenberg v. Google, Plaintiff’s memorandum in opposition to defendant’s motion to dismiss – http://www.onpointnews.com/docs/GoogleMaps_MTD2.pdf