Boring v. Google

Citation: Boring v. Google, Inc., 598 F. Supp. 2d 695 (W.D. Pa. 2009)(full-text), rev'd and remanded in part, No. 09-2350 (3rd Cir. Jan. 28, 2010).

Factual Background
In April, 2008, the Borings brought an action against Google, Inc. asserting claims for invasion of privacy, trespass, injunctive relief, negligence, and conversion based on Google’s “Street View” program. The program offered free access to “panoramic, navigable views of streets in and around major cities across the United States.” To accomplish this, Google attached digital cameras to cars that drove around the city taking pictures. The Borings alleged that their residence was only accessible by a road that was clearly marked as “private” and with “no trespassing” signs posted, but that Google still entered their property to photograph their house. The Borings sought compensatory, incidental, and consequential damages in excess of $25,000 for each claim, plus punitive damages and attorney’s fees.

Trial Court Proceedings
The District Court granted Google’s motion to dismiss as to all of the Borings’ claims. The Court dismissed the invasion of privacy claim because the Borings were unable to show that Google’s conduct was highly offensive to a person of ordinary sensibilities; the negligence claim was dismissed because Plaintiffs could not establish that Google owed them a duty. Finally, the Court dismissed the trespass claim because the Borings failed to allege “facts sufficient to establish that they suffered any damages caused by the alleged trespass.” Damages, however, are not an element of a prima facie case for trespass. Following a motion for reconsideration, the Court clarified that it had dismissed the trespass claim because the Borings had “failed to allege facts sufficient to support a plausible claim that they suffered any damages as a result of the trespass” and because they failed to request nominal damages in their complaint.

Appellate Court Proceedings On appeal the Third Circuit affirmed the lower court’s holdings regarding the Borings’ claims except with regard to their claim for trespass. Trespass is a strict liability tort, and under Pennsylvania law, it is defined as an “unprivileged, intentional intrusion upon land in possession of another.” The Borings’ claim that Google entered their property without permission was sufficient for a finding of trespass, regardless of the lower court’s discussion of a lack of damages; there is no requirement that damages be pled, either nominal or consequential. The Court did acknowledge, however, that the Borings could potentially only be able to collect nominal damages of $1, and that they would bear the burden of proving that the “trespass was a substantial factor in bringing about actual harm or damage.”