NYCkayaker What's Next, GPS Liability?

[Richard Clifford]

NYCKayaker:
    Oh, I'm not certain. maybe it is all the rain today. I figure with 
the beautiful weather over the weekend that some folks will just read 
this and move on, others may not and come up with all sorts of things to 
write. The issue may be of interest if anyone gets lost and cold with 
their hand held GPS unit.  Anyway, now it is out there. Best wishes, - 
Richard Clifford


  What's Next, GPS Liability?

* 
<http://www.findlaw.com>*http://technology.findlaw.com/articles/00006/011079.html


    By Eric Sinrod, 

(January 15, 2008) - An automobile driver recently was held responsible 
for crashing a rental car into a train after following global 
positioning system (GPS) instructions that put his rental car onto the 
train tracks. This raises the specter of automobile drivers pointing the 
liability finger at GPS providers and filing lawsuits against such 
providers when GPS instructions are not accurate.

The facts of the particular rental car-train crash were reported at 
LoHud.com (The Journal News for New York's Lower Hudson Valley) on 
January 3. A California computer technician who was visiting the East 
Coast followed the car's GPS instructions which told him to turn right 
as he was crossing railroad tracks. He was trying to get to a parkway 
shortly beyond the tracks.

As the driver crossed the tracks, the car become stuck and could not 
move. The driver tried but failed to reverse the car off of the tracks. 
Ultimately, he left the car.

The driver witnessed an oncoming train. He waved his arms, trying to 
stop the train. However, the train was not able to slow down enough to 
avoid a collision. The train smashed into the car. Although nobody was 
hurt, hundreds of passengers were delayed for two hours, and a number of 
other trains were canceled or delayed in the wake of the accident.

Because of the collision, the rental car, the train and more than 200 
feet of the electrified third rail of the tracks was damaged. The rental 
car driver was issued a summons and is being held liable for the damage 
to the train and track.

Does the rental car driver have recourse as against the GPS provider? 
What if the instructions provided to him were not accurate in terms of 
his intended destination?

While enough is not known as to whether the GPS instructions in this 
particular instance were accurate, the question still remains, because, 
even though GPS instructions are of great value and often are correct, 
they are not perfect.

I recall one instance, when I had rented a car in Florida, that the GPS 
system told me that I arrived at my destination, when in fact, I was 
still in the middle of a highway with about another half-mile to go 
before arriving. It was a good thing that I did not assume I had arrived 
and simply stopped in the middle of the highway!

I remember another time when I was trying to get to a gym for a youth 
basketball tournament, and the GPS instructions concluded my route by 
leaving me at the end of a cul de sac facing a field with no gym 
anywhere in sight. No harm, no foul, as on my own I found the gym a few 
miles away.

But getting back to the question, what happens if following GPS 
instructions leads to an accident and damage?

While a driver might argue that he or she paid for a service, is 
entitled to rely upon the accuracy of the service, and can seek to hold 
the provider of the service responsible if the service does not perform 
properly, a GPS service provider would have counter-arguments.

First, the written contractual materials, and the click-through 
materials to operate a GPS device, would likely disclaim any 
responsibility in this scenario and would require the driver to ensure 
that his operation of the vehicle was safe wholly apart from whatever 
the GPS device tells him or her to do.

The question then would be whether this would be considered a bargained 
for and enforceable contractual provision, or whether it would be 
considered an unenforceable "adhesion contract." That would be for a 
judge to decide.

Second, separate from contractual terms, a GPS service provider could 
argue that it was not too long ago that GPS devices were not available 
to drivers. Indeed, to this day many drivers do not use such devices. 
Thus, for decades and even now drivers must independently figure out how 
to get to their intended destinations. Accordingly, just because a GPS 
now might provide some assistance, it is unreasonable to allow a driver 
to fob off all responsibility on the GPS provider.

On the other hand, and when it comes to legal matters there always is 
another hand, a GPS device, when operational, at a minimum, is very 
distracting, and at most, is quite commanding. When a driver is in 
unfamiliar territory, is given explicit directions by a GPS device, and 
then must make a decision in a split second as to what to do, it might 
not be unreasonable for the driver to rely upon the GPS instructions.

As technology advances, the law follows. It would not be surprising to 
this writer/lawyer to see GPS cases going forward that will map out 
(pardon the pun) this area of the law.

/

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP 
(http://www.duanemorris.com <http://www.duanemorris.com/>) where he 
focuses on litigation matters of various types, including information 
technology and intellectual property disputes.  His Web site is 
http://www.sinrodlaw.com <http://www.sinrodlaw.com/> and he can be 
reached at ejsinrod at duanemorris.com <mailto:ejsinrod at duanemorris.com>.  
To receive a weekly email link to Mr. Sinrod's columns, please send an 
email to him with Subscribe in the Subject line.

This column is prepared and published for informational purposes only 
and should not be construed as legal advice.  The views expressed in 
this column are those of the author and do not necessarily reflect the 
views of the author's law firm or its individual partners.

/



-- 



Richard C. Clifford, Esq.
Attorney at Law
1890 Palmer Avenue, Suite 302
Larchmont, NY 10538

Tel: (914) 834-0100 -or- 834-0757
Cell: (917) 854-5824
Fax: (914) 834-0888

RichardClifford at earthlink.net 
RichardClifford at NYSBar.com



********************************************************************

CONFIDENTIALITY NOTICE: 

NOTICE: This e-mail message and all files and attachments transmitted with it is privileged and confidential, intended for the sole use of the designated recipient(s) as it may contain information that is privileged, confidential, attorney work product or protected from disclosure under applicable law.  

If you have received this communication in error, please notify the sender immediately at richardclifford at earthlink.net by replying to this message.  If the reader of this message is not the intended recipient, or an employee or agent responsible for delivering this message to the intended recipient, you are hereby notified that any dissemination, distribution, copying, or other use of this message or its attachments is strictly prohibited.  You should not retain, copy or use this email or any attachments for any purpose, or disclose all or any part of the contents to any person.  Please delete this email, any attachments, and all copies and backups from your computer.  

Please note that all incoming emails will be automatically scanned by us and by an external service provider to eliminate unsolicited promotional emails ("spam").  This could result in deletion of a legitimate e-mail before it is read by its intended recipient at my law firm.  Please tell me if you have concerns about this automatic filtering. 

IRS CIRCULAR 230 DISCLOSURE: 

To ensure compliance with requirements imposed by the U.S. Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended or written to be used, and cannot be used, by any taxpayer for the purpose of (i) avoiding tax related penalties under the U.S. Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. 

Thank You.  Richard C. Clifford

********************************************************************