Walk this way...

[Sue U]

Well, then by what standard are you going to sue them by, they haven't claimed to follow any?


...like Google.

The standard by which these kinds of lawsuits are brought is "negligence." Most simply, negligence means failing to exercise due care for the safety of others, considering the circumstances.

"False advertising" is something else altogether, as are its cousins fraud and misrepresentation.

Do you really think you are (or should be) prevented from suing non-licensed tradesmen for "bad service" -- by which I mean, negligently performed services that result in injury or property damage? Do you think that you, as an individual, could (or ought to be able to) sue someone for "practicing without a license"?

[Andrew D]

This more like waiting to cross a busy street when a driver stops and waves you to cross in front of him, sending you right into the path of an oncoming vehicle. Depending on all the surrounding circumstances, some portion of liability is going to be assessed to the waving motorist.

And that is the sort of case which gives tort law a bad name. When a motorist stops and waves you to cross in front of her or him, he or she is in absolutely no way "sending" you into the path of an oncoming vehicle. He or she is doing nothing more than either acknowledging your right of way or yielding the right of way to you. The motorist is not, and should not be construed to be, telling you that it is safe to cross a lane which that motorist is not occupying.

In those circumstances, the primary liability should rest with the motorist who hits you. What happened to you is precisely why it is illegal for that motorist to proceed under those circumstances. The secondary liability should lie with you. Nothing prevented you from stopping in front of the motorist who waved you to cross in front of her or him -- not to cross in front of oncoming traffic over which that motorist had no control -- and checking the other lane for oncoming traffic. The motorist who waved you to cross in front of her or him should bear no liability whatsover.

[Andrew D]

For those of you who object, do you think Google has no responsibility for the information services it provides?

* * *

Do you really think you are (or should be) prevented from suing non-licensed tradesmen for "bad service" -- by which I mean, negligently performed services that result in injury or property damage?

Both questions are irrelevant to this case. In this case, Google provided a warning that clearly stated:

Use caution -- This route may ve missing sidewalks or pedestrian paths.

The injured person claims that her BlackBerry did not include that warning. If that is so, perhaps BlackBerry (or whoever owns BlackBerry) decided not to include that warning should bear some of the liability. But even then, I think not: The pedestrian has her own pair of eyes, and the absence of a sidewalk or pedestrian path was self-evident. All of the liability should be distributed between the motorist and the pedestrian. Even if BlackBerry should be partially liable, however, Google should be liable only if it participated in BlackBerry's decision not include the warning that Google provided.

[Sue U]

As I understand it, Andrew, at least one element of the complaint against Google is that the warning did not appear in the version of its directions as displayed on BlackBerry; whether that is the result of Google's software or BlackBerry's service I do not know, but Google would certainly be free to implead BlackBerry as a third-party defendant if it thought BlackBerry was responsible.

As for your contention that the "waving motorist" line of cases "gives tort law a bad name," the New York Appellate Division had occasion to re-consider the issue just a few weeks ago, and held to the rule:

There has long been an ongoing debate concerning the elements of tort liability, particularly the element of duty. That issue was the focus of both Judge Cardozo's majority decision and Judge Andrews's dissent in Palsgraf v Long Is. R.R. Co. (248 NY 339, 344, 350 [1928]), and it is a debate that continues today (see Weinrib, The Passing of Palsgraf?, 54 Vand L Rev 803 [2001]), particularly in the context of a new proposed revision of the Restatement of Torts (see Twerski, The Cleaver, the Violin, and the Scalpel: Duty and the Restatement [Third] of Torts, 60 Hastings LJ 1 [2008]). Judge Cardozo's classic formulation in Palsgraf, that "[t]he risk reasonably to be perceived defines the duty to be obeyed" (Palsgraf at 344), emphasizing the link between duty and the foreseeability of harm to a particular person, may have undergone some adjustment in the more recent formulation that "[f]oreseeability of injury does not determine the existence of duty" (Eiseman v State of New York, 70 NY2d 175, 187 [1987]). Nevertheless, it remains true that a defendant will be held liable in tort only where that defendant can be said to have breached a legal duty to the plaintiff "to conform to a certain standard of conduct, for the protection of others against unreasonable risks" (Prosser and Keeton, Torts § 30, at 164 [5th ed]), and the question of whether a duty is owed by a defendant to a plaintiff, unlike the factual issues of foreseeability and causation, remains an issue of law to be decided by the court (Eiseman, 70 NY2d at 187).

Our discussion must therefore focus first on whether Whaley owed, and breached, a duty to plaintiff.

A motorist always has a duty to operate his or her vehicle with reasonable care (PJI 2:77), which encompasses the duty to see what is there to be seen (PJI 2:77.1). That duty is necessarily owed to everyone else on the roads. However, the duty relied on in Yau v New York City Transit Authority (10 AD3d 654, supra) and the other cases imposing tort liability where a motorist's gesture to a pedestrian is understood and relied on as an assurance that it is safe for the pedestrian to proceed across the roadway, is actually a separate duty, one that arises only upon the making of the gesture. One New Jersey court quoted Justice Cardozo in justifying the imposition of such a duty: "one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all" (Thorne v Miller, 317 NJ Super 554 [1998], citing Glanzer v Shepard, 233 NY 236, 276 [1922]).

While we are sympathetic to the Transit Authority's suggestion that a driver yielding the right of way to another should be able to gesture to the other individual simply to confirm his intention to stop and wait for him or her to cross, without incurring liability for another motorist's negligence, we decline its invitation to revisit a rule that is by now well-established law in this State: In appropriate circumstances, a driver may incur a duty to another by gesturing that it is safe to cross the road.

Olhausen v. City of New York, April 1, 2010.

As to my other questions directed to Loca and the non-lawyer population of this board, I am simply exploring issues that may be relevant to my practice, if not this particular case. Of course, you can play if you want to.

[Rick]

In the link I posted "A different perspective" it states that Blackberry does indeed have a warning, however abreviated.

Her lawyer indicated she was trying to cross the road.

If this is the case she violated Utah pedestrian law by not yeilding to traffic in an area where no cross walk was provided...

[Grim Reaper]

Something else to consider, Google Maps comes with Streetview, which means that she could have looked at the route before going out.

[loCAtek]

Actually, there ar emany trades that don't require a license; not certain about mechanics, but carpenters are not licensed (although they may have certifications) nor are painters. So you're saying if a painter comes to your house and screws up he owes you nothing because he wasn't claiming to follow any standard?

Nope.

I really doin't understand that. Doesn't anyone who sells you something or provides a service have some modicum of duty toward you, his or her customer, for the quality of what is provided? I think they do.

Yes, of course they do if they want to stay in business. A bad painter will not be able to support himself, if he has a bad reputation, that is if he's known for shoddy workmanship. (Painters do, usually belong to unions, which also support standards of quality.)

[loCAtek]

The standard by which these kinds of lawsuits are brought is "negligence." Most simply, negligence means failing to exercise due care for the safety of others, considering the circumstances.

"False advertising" is something else altogether, as are its cousins fraud and misrepresentation.

Do you really think you are (or should be) prevented from suing non-licensed tradesmen for "bad service" -- by which I mean, negligently performed services that result in injury or property damage?

Prevented? I didn't say that.

Do you think that you, as an individual, could (or ought to be able to) sue someone for "practicing without a license"?

Depends on the practice. Honestly as an individual, I'm not sure I could but I think I could report them for it, since (in some cases) it is a crime.

[loCAtek]

In the link I posted "A different perspective" it states that Blackberry does indeed have a warning, however abreviated.

Her lawyer indicated she was trying to cross the road.

If this is the case she violated Utah pedestrian law by not yeilding to traffic in an area where no cross walk was provided...

Also in your linked article, she says it was dark out. Now, if I was her I wouldn't have mentioned either of those because Google had no obligation to mention that;

a) You should stay out of the flow of traffic

b) You should do so especially during bad visibility conditions.

Common sense prevails.

[tyro]

So this person was unable to assess the advisability of using the route using her own judgment?

This more like waiting to cross a busy street when a driver stops and waves you to cross in front of him, sending you right into the path of an oncoming vehicle. Depending on all the surrounding circumstances, some portion of liability is going to be assessed to the waving motorist

I took a course in defensive driving and the instructor was a wealth of interesting information. One advisory he gave us was that if you wave another vehicle to proceed into an intersection, you have taken upon yourself the responsibility of a traffic cop and it is your responsibility to know that the other driver can proceed safely. He advised using some other gesture such as a nod.

[Rick]

I took a course in defensive driving and the instructor was a wealth of interesting information. One advisory he gave us was that if you wave another vehicle to proceed into an intersection, you have taken upon yourself the responsibility of a traffic cop and it is your responsibility to know that the other driver can proceed safely. He advised using some other gesture such as a nod.

So if you profer the bird they were duely notified they were in the wrong...

[Joe Guy]

For those of you who object, do you think Google has no responsibility for the information services it provides?

If a Google map indicated that you would need to jump off of a bridge to get to the water 2000 feet below, would it be Google's fault if you did it?

Why not?

Because Google shows a path to a destination. It doesn't claim there is no danger involved. Even normal driving directions are dangerous if the driver is stupid. Google doesn't tell people that they need to stop at stop signs or go a certain speed either. If someone runs a red light following directions given by Google is that Google's fault?

Under what circumstaces would you say they might be responsible for providing bad information?

If Google were to say that a person needs to go to a bar and have a few drinks before driving, it would be guilty of giving bad advice.

[Sue U]

Do you really think you are (or should be) prevented from suing non-licensed tradesmen for "bad service" -- by which I mean, negligently performed services that result in injury or property damage?

Prevented? I didn't say that.

Then what did you mean by this:

Well, there are lot of trades and business, like mechanics, that you can not practice for profit, without a license. You go to a non-licensed tradesman and you may not be able to sue for bad services, (as happens so often with hiring day laborers) but you may be able to sue for practicing without a license.

(emphasis added)

and this:

Well, if I go to an auto mechanic who's service is certified and licensed as experts in the field, I have recourse.

If I go for the same auto service from cuzzin Bob who freelances out of his garage, then I don't and yeah too bad, so sad.

? What do you mean when you say "recourse"?

For those of you who object, do you think Google has no responsibility for the information services it provides?

If a Google map indicated that you would need to jump off of a bridge to get to the water 2000 feet below, would it be Google's fault if you did it?

I could have sworn I asked for "a well-considered response." Your "answer" is a non sequitur, Joe. The question is whether Google (or any other commercial information services provider) has, or should have, or shouldn't have any responsibility for the services it provides.

Why not?

Because Google shows a path to a destination. It doesn't claim there is no danger involved. Even normal driving directions are dangerous if the driver is stupid. Google doesn't tell people that they need to stop at stop signs or go a certain speed either. If someone runs a red light following directions given by Google is that Google's fault?

I think the question is, what are the reasonable expectations when Google, which advertises itself as a navigational service, provides you with what it specifically designates as a "pedestrian route" to follow (assuming that no disclaimer actually appears on the BlackBerry display). When using "normal driving directions," one would reasonably expect to encounter normal driving hazards, stop signs, speed limits, road construction, detours, etc. -- even if one is stupid. When using "normal pedestrian directions," wouldn't you expect there to at least be a normal pedestrian route?

Under what circumstaces would you say they might be responsible for providing bad information?

If Google were to say that a person needs to go to a bar and have a few drinks before driving, it would be guilty of giving bad advice.

Again, thanks for the well-considered response.

[loCAtek]

'May not' is a disclaimer indicating you may or may not depending on the trade and state and/or local laws.

[Sue U]

Loca, I'm just trying to find out what you think the requirements for legal liability of a services provider are and/or ought to be. What should someone who is complaining of personal injury or other damage have to prove in order to hold a services provider responsible?

[The Hen]

Something else to consider, Google Maps comes with Streetview, which means that she could have looked at the route before going out.

This is something I often do when going to a city I don't know. I always have a look at Google Streetview so I will recognise the building when I get there.

[Andrew D]

Fortunately, Sue, the wrongheaded decision in the Ohlhausen case to adhere to the waving-motorist rule is a decision by an intermediate court, not by New York's highest court. And it does not cite any case in which New York's highest court has adopted that rule. We can fondly hope that New York's highest court will take a more sensible approach.

One fundamental problem with the rule is that, by its own terms, it does not apply to your hypothetical. (As you know, the Ohlhausen case involves a gesture made by one motorist to another, not a gesture made by a motorist to the injured party -- factual complications not presented by your hypothetical.)

The Ohlhausen decision states the rule as being "that under certain circumstances, a driver of a motor vehicle may be liable to a pedestrian where that driver undertakes to direct a pedestrian safely across the road in front of his vehicle, and negligently carries out that duty." (Emphases added; brackets and internal quotation marks omitted.) And again: "In appropriate circumstances, a driver may incur a duty to another by gesturing that it is safe to cross the road." (Emphases added.)

That is simply not what happens in your hypothetical. The driver in no way directs the pedestrian safely "across the road" or gestures that it is safe "to cross the road." The driver communicates only that it is safe to step in front of that motorist's vehicle, nothing more. The driver does not communicate that it is safe for the pedestrian to proceed any farther across the road than that.

If the injured party misinterprets the motorist's gesture as meaning that it is safe to proceed all the way across the road, that misinterpretation is inherently, intrinsically unreasonable -- unreasonable per se. It should not be for a jury to decide whether that misinterpretation is reasonable or unreasonable; that misinterpretation is self-evidently unreasonable, and the injured party's case against the waving motorist should end right there.

A second fundamental problem with the waving-motorist rule is that even if the question of the reasonableness or unreasonableness of the injured party's misinterpretation of the motorist's gesture is wrongly held to be a question for the jury, the injured party's case should still collapse without ever getting that far. That is because, even if the injured party's misinterpretation of the motorist's gesture could somehow be reasonable -- which it cannot -- it must also be reasonable for the injured party to rely on that gesture and presume that it is safe to cross the entire road, without bothering to look for her- or himself to see whether there is oncoming traffic in a lane not occupied by the waving motorist. That is also impossible.

Because in Ohlhausen, the undisputed evidence showed that the one motorist did not actually rely on the other motorist's gesture, the court referred only in passing to a venerable principle of tort law: For the defendant to be liable, the plaintiff must actually and "reasonably rely on [the defendant's] gesture to presume" that it is safe to walk all the way across the road.

Even if the plaintiff's misinterpretation of the defendant's gesture is (necessarily wrongly) found to be reasonable, the plaintiff's reliance on that gesture to presume that it is safe to walk all the way across the road is likewise inherently, intrinsically unreasonable -- unreasonable per se. The plaintiff had a perfect opportunity to stop in front of the waving motorist's vehicle and look for her- or himself to see whether there was oncoming traffic in another lane. Given the existence of that opportunity, the plaintiff had a duty to exercise it. If the plaintiff failed to do so, the fault for that lies entirely on her or him. (Of course, the motorist who actually struck the injured party should still be liable, but as between the plaintiff and the waving motorist, the waving motorist should bear no liability at all.) So on that independent ground, the plaintiff's case should likewise crash and burn.

The long and short of it is this: The defendant did nothing more than indicate to the plaintiff that it was safe for the plaintiff to step in front of the defendant's vehicle. The plaintiff unreasonably misinterpreted that gesture as an indication that it was safe to cross the entire road. Independently of that, the plaintiff then unreasonably chose not to ascertain for her- or himself whether there was oncoming traffic in another lane, despite having had the opportunity to do so, instead choosing to go blithely strolling out in front of oncoming traffic which he or she could readily have seen, had he or she troubled her- or himself to look. Holding the waving motorist liable to the plaintiff in those circumstances is, again, exactly the sort of thing which gives tort law a bad name.

And it results in bad consequences for plaintiffs in case which actually have merit. It results, for example, in tort "reforms" pursuant to which, if the plaintiff is 51% at fault, and the defendant is 49% at fault, the plaintiff takes nothing from the defendant. In other words, people get so sick of seeing plaintiffs get damages awards against defendants who cannot rationally be described as having been at fault that they enact "reforms" whose result is that defendants who really are substantially at fault end up not having to pay anything to the injured plaintiffs. That does plaintiffs with meritorious claims a grave injustice.

[Andrew D]

As I understand it, Andrew, at least one element of the complaint against Google is that the warning did not appear in the version of its directions as displayed on BlackBerry; whether that is the result of Google's software or BlackBerry's service I do not know, but Google would certainly be free to implead BlackBerry as a third-party defendant if it thought BlackBerry was responsible.

True enough. But Google should not have to implead BlackBerry as a third-party defendant. The plaintiff bears the burden of proof against Google. If the plaintiff cannot show that Google participated in BlackBerry's decision not to include the clear warning which Google provided, then Google is (or ought to be) entitled to summary judgment regardless of whether BlackBerry is or is not at fault.

The plaintiff's (i.e., the plaintiff's lawyer's) tactic of suing only Google and not BlackBerry -- if that is what is happening here -- is nothing more than a cynical ploy designed to coerce a settlement out of Google by threatening Google's business relationship with BlackBerry. Such tactics also give tort law a bad name.

[Andrew D]

Finally, even if the plaintiff can show that Google participated in BlackBerry's decision not to include the clear warning which Google provided, Google should still not be liable. Nor should BlackBerry. The simple fact of the matter is that the plaintiff chose to proceed along the route even though that route self-evidently lacked sidewalks or pedestrian pathways.

I think the question is, what are the reasonable expectations when Google, which advertises itself as a navigational service, provides you with what it specifically designates as a "pedestrian route" to follow (assuming that no disclaimer actually appears on the BlackBerry display). When using "normal driving directions," one would reasonably expect to encounter normal driving hazards, stop signs, speed limits, road construction, detours, etc. -- even if one is stupid. When using "normal pedestrian directions," wouldn't you expect there to at least be a normal pedestrian route?

Sure I would. And when I got to the point where there was no sidewalk or pedestrian path, it would be up to me -- not to Google, not to BlackBerry, but solely to me -- to decide whether to proceed or go back. If I choose to proceed, the consequences of that choice fall upon me (and, of course, upon the motorist who struck me). They should not fall, even in part, upon Google or BlackBerry. I and only I made the choice to continue despite knowing that there was no sidewalk or pedestrian path. Neither Google nor BlackBerry made that choice; I did.

[Joe Guy]

Joe. The question is whether Google (or any other commercial information services provider) has, or should have, or shouldn't have any responsibility for the services it provides.

Sorry. I guess I missed that.

I thought you were interested in whether or not people believed if Google should be responsible for some idiot who reads one of their maps and follows the directions without thinking.

I think the question is, what are the reasonable expectations when Google, which advertises itself as a navigational service, provides you with what it specifically designates as a "pedestrian route" to follow (assuming that no disclaimer actually appears on the BlackBerry display). When using "normal driving directions," one would reasonably expect to encounter normal driving hazards, stop signs, speed limits, road construction, detours, etc. -- even if one is stupid. When using "normal pedestrian directions," wouldn't you expect there to at least be a normal pedestrian route?

I think it is reasonable for Google to expect a person/map user to have a normal pedestrian brain.

Again, thanks for the well-considered response.

Thanks for your well-considered eye roll.