Wednesday, February 03, 2010

Pennsylvania Residents Can Proceed with Trespass Claims over Google “Street View”

This posting was written by Thomas A. Long, Editor of CCH Privacy Law in Marketing.

Two Pennsylvania residents (the Borings) could go forward with common-law trespass claims against Internet search-engine operator Google for photographing their residence, outbuildings, and swimming pool and including the photographs in Google's "Street View" option for its online map service, the U.S. Court of Appeals in Philadelphia has held in a non-precedential decision.

The Borings, who live on a private road in Pittsburgh, alleged that Google entered their property without permission and despite a "no trespassing" sign.


A federal district court had dismissed the claims (CCH Privacy Law in Marketing ¶60,298), ruling that the Borings failed to allege facts sufficient to support a plausible claim that they suffered any damage as a result of Google’s trespass. (See March 5, 2009 posting on Trade Regulation Talk).

In its denial of the Borings’ motion for reconsideration (CCH Privacy Law in Marketing ¶60,323), the district court explained that, although nominal damages are available for the tort of trespass in Pennsylvania, the residents did not request nominal damages in their amended complaint, as required by Pennsylvania law.


Trespass is a strict liability tort, the appellate court noted. The district court effectively made damages an element of the claim, which was erroneous. The Borings’ assertion that Google entered onto their property without permission was sufficient to state a claim for trespass. There was no requirement that damages be pleaded, either nominal or consequential.

“Of course,” the appellate court said, “it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day.”

To receive more than one dollar, the Borings would have to prove that the trespass was the legal cause of actual harm or damage, the court said. Their complaint, however, alleged sufficient facts to survive a motion to dismiss.

Invasion of Privacy

The appellate court affirmed the dismissal of the Borings’ claims for common-law invasion of privacy, on the ground that the Borings failed to allege facts that would support a conclusion that Google’s entry onto their property and its capturing of images for the Street View service would be highly offensive to a reasonable person.

“No person of ordinary sensibilities would be ashamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there,” the court said.

In the court’s view, Google’s actions were arguably less intrusive than a knock on the door of a private residence, which the Restatement (Second) of Torts cited as an example of conduct that would not be highly offensive to a person of ordinary sensibilities. The view of the Borings’ house, garage, and pool could be seen by any person who entered onto their driveway, including a visitor or a delivery person.

The heart of the Borings’ complaint appeared not to be Google’s fleeting presence in the driveway, but, rather, the photographic image captured at that time, according to the court. “The existence of that image, though, does not in itself rise to the level of an intrusion that could reasonably be called highly offensive,” the court said.

Unjust Enrichment

Dismissal of the Borings’ claims for unjust enrichment was also affirmed. The Borings did not allege that they conferred any benefit to Google, let alone a benefit for which they could reasonably expect to be compensated.

Injunctive Relief

The Borings also failed to set out facts supporting a plausible claim of entitlement to injunctive relief. There was no allegation of injury resulting from Google’s retention of the photographs, which was unsurprising, the court said, because the allegedly offending images had been removed from the Street View service.

Full text of the January 28 decision in Boring v. Google, Inc., 3rd. Cir., No. 09-2350, will appear in CCH Privacy Law in Marketing.

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