Utah Trial Court Rejects “Negligent Directions” Claim Against Google

The decision is Rosenberg v. Harwood (Utah Dist. Ct. May 27, 2001); it’s two months old, but I just saw it because it was just posted on Westlaw. Here’s an excerpt:

Plaintiff Lauren Rosenberg alleges that Defendant Google negligently provided her with walking directions that directed her to cross State Route 224 (SR 224), a rural highway with heavy traffic and no sidewalks, where she was seriously injured after being struck by an automobile that was negligently driven by Defendant Patrick Harwood. Google now brings this motion to dismiss Rosenberg’s claims against it, on the ground that the Complaint fails to state a cause of action against Google. For the reasons discussed below, I GRANT the motion to dismiss Rosenberg’s claims against Google….

In the negligence context, “[a] duty … may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” … To determine whether a duty exists, courts analyze several factors, including “the legal relationship between the parties, the foreseeability of injury, the likelihood of injury, public policy as to which party can best bear the loss occasioned by the injury, and other general policy considerations.” Normandeau v. Hanson Equipment, Inc., 2009 UT 44, ¶ 19, 215 P.3d 152. The determination that a “duty does or does not exist is an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is [or is not] entitled to protection.” …

[1.] With respect to the first Normandeau factor, I conclude that it does not require the imposition of a duty. As a preliminary matter, I note that nothing in the Complaint indicates that there was any contractual or fiduciary relationship between Google and Rosenberg that would give rise to any contractual or fiduciary duties on Google’s part. Likewise, the Complaint does not allege that Google “deprived [Rosenberg] of [her] normal opportunities for protection” or that the parties otherwise had a special relationship that would impose on Google a duty to protect Rosenberg from the negligence of a third party like Harwood….

In support of her claim that a duty exists, Rosenberg correctly states that service providers may be liable if they negligently provide services to their customers. However, “[a] relationship that is highly attenuated is less likely to be accompanied by a duty.” For example, where a publisher or other information provider publishes information to the general public, courts have regularly held that they owed no duty to the public at large….

[2.] Turning next to the foreseeability of harm, that factor weighs in favor of finding a duty…. Rosenberg claims that her injury was reasonably foreseeable based on the Complaint’s allegations that Google directed her to walk along SR 224, a dangerous road that lacks sidewalks and is frequently used by vehicles traveling at a high rate of speed…. These allegations do not necessarily contemplate the “specific mechanism of the harm” that occurred in Rosenberg’s case, but the allegations are sufficient to establish that it was foreseeable that Rosenberg would be harmed as a result of following walking directions that led her along a dangerous road.

[3.] With respect to the third Normandeau factor, I conclude Rosenberg’s injury was not likely to occur, which weighs against finding a duty on Google’s part…. Rosenberg points to nothing in the Complaint that alleges that an accident is more likely along the route in question than any other route. Furthermore, as Google points out, it is unlikely that a pedestrian will be injured while crossing a road, as Rosenberg was here, unless the pedestrian breaches their own duty and disregards the risks to cross the road in front of oncoming traffic. The facts relating to any negligence on Rosenberg’s part are not currently before the Court and are not considered in connection with the motion to dismiss, but 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.

[4.] Turning to the final Normandeau factor, the policy considerations weigh heavily against a conclusion that Google owed Rosenberg a duty.

Before addressing the specific policy considerations, I first address Google’s contention that it is a “publisher,” albeit an electronic one, entitled to the protections the law affords the same. [Footnote: Some courts have relied on the First Amendment in reaching that conclusion, holding that an imposition of a duty would violate the First Amendment. See, e.g., Smith v. Linn, 563 A.2d 123, 125 (Pa. Super. Ct. 1989). As stated above, I do not reach the constitutional issue here, but the potential First Amendment concerns remain a valid factor to consider in the Court’s analysis of the duty issue. See generally Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1037 (9th Cir. 1991) (“Were we tempted to create this duty, the gentle tug of the First Amendment and the values embodied therein would remind us of the social costs.”); Brandt v. Weather Channel, Inc., 42 F. Supp. 2d 1344, 1346 (S.D. Fl. 1999) (refusing to recognize a duty to provide accurate weather forecasts because doing so would “chill the well established first amendment rights of the broadcasters”).] See, e.g., Winter v. G.P. Putnam’s Sons, 938 F.2d 1033, 1037 (9th Cir. 1991) (declining to impose a duty on the publisher of a mushroom encyclopedia); First Equity Corp., 670 F. Supp. at 117 (declining to impose a duty on a publisher of corporate reports).

Rosenberg argues that Google is not a publisher because the Google Maps service “provide[s] one-on-one information about walking routes” that is not “published to the general public.” To claim that Google provided the information only to one individual, and therefore is not entitled to the protections afforded publishers, ignores the realities of modem 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.

Having established that Google is a publisher, it is apparent that the same policy considerations are present here as those in other cases that have rejected imposing a duty on publishers for providing faulty information. [Footnote: Rosenberg also argues that Google is not only a publisher, but an author, who might enjoy less protection than a publisher because they created the information. However, many of the same policy considerations present in imposing liability on publishers would also be present if liability were imposed on authors, and relying on similar grounds, courts have declined to impose liability on authors as well. See, e.g., Bailey v. Huggins Diagnostic & Rehab. Ctr., Inc., 952 P.2d 768, 773 (Colo. App. 1997).] Chief among those considerations is the possibility that a publisher may be subject to liability to an unlimited number of individuals who may read or receive the information. Likewise, requiring Google to investigate its routes to ensure that every portion of the walking directions is safe would impose an onerous burden on Google. Indeed, as the United States Supreme Court has recognized, some errors are “inevitable” in the publishing business….

When these burdens are weighed against other factors, such as the high social utility of Google’s information services and the accompanying First Amendment values, and the slim likelihood of injury, “courts have placed more value on the societal benefits of information availability than on the rights of private persons who claim to have been harmed.” I agree that such is the case here, where Google’s activities have a high social value and the burdens associated with imposing the broad duties suggested by Rosenberg would be heavy, while the actual likelihood of injury is relatively low. Therefore, under this “basic ‘Hand Formula’ negligence analysis,” I conclude that policy considerations weigh strongly against imposing the duties articulated in the Complaint.

Such a conclusion does not conflict with the notion that, as Rosenberg states, “the public policy behind tort law is to hold tortfeasors accountable for harms occasioned by their fault,” and that “between an innocent party and a negligent tortfeasor, public policy requires that any loss should be born by the tortfeasor.” To impose the broad duties that Rosenberg suggests would not necessarily serve that end. To the contrary, as discussed above, Utah law already imposes certain duties on pedestrians, including to “yield the right-of-way to all vehicles” when “crossing a roadway at any point other than within a marked crosswalk,” and to “maintain reasonable, proper and adequate lookout [,] and .. recurrently reobserve and reappraise the situation,” To impose the duties suggested by Rosenberg would reduce, if not eliminate, the duties already imposed on pedestrians. Thus, while imposing a duty on Google would make Google responsible for its own negligent actions, it would serve to diminish the responsibility that pedestrians have for their own safety, which does not serve the goal of making individuals accountable for their own errors.