Perspective: Is GPS liability next?

perspective An automobile driver recently was held responsible for crashing a rental car into a train after following global positioning system 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 (a news outlet 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 the 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 vehicle.

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 were 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 against the GPS provider? What if the instructions provided to him were not accurate in terms of his intended destination?

While not enough is 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 rented a car in Florida. The GPS system told me 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 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 in sight. No harm, no foul, as I found the gym a few miles away on my own.

But getting back to the question of what happens if a GPS unit's instructions lead to an accident? 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 counterarguments.

Who bears responsibility?
First, likely, the written contractual materials, and the click-through materials to operate a GPS device, would disclaim any responsibility in this scenario and would require the driver to ensure that his or her driving 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 weren't 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 tooling through unfamiliar territory and given explicit directions by a GPS device, a driver must make a decision in a split second what to do. At that point, it might not be unreasonable if he or she relied upon the GPS instructions.

As technology advances, the law follows, and I wouldn't be surprised to see more GPS cases going forward that map out (pardon the pun) this area of the law.

Biography
Eric J. Sinrod is a partner in the San Francisco office of Duane Morris. His focus includes information technology and intellectual-property disputes. To receive his weekly columns, send an e-mail to ejsinrod@duanemorris.com with "Subscribe" in the subject line. This column is prepared and published for informational purposes only, and it 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.

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