Boring v. Google, Inc.

Brief Fact Summary.

The Borings (Plaintiffs) brought suit for invasion of privacy and trespass after Google Inc. (Defendant) drove a car onto Plaintiff’s driveway and photographed their home for Defendant’s “Street View†map feature.

Synopsis of Rule of Law.

1) In order to state a claim for invasion of privacy based upon intrusion upon seclusion, the intrusion must be of a type that would be substantial and highly offensive to a reasonable person.  2) In order to state a claim for trespass, a plaintiff does not need to plead damages.

Facts.

Defendant, an Internet search engine company, provides a feature called Google Maps. Within this feature is the ability for users to see the “Street View†of streets across the United States. This view is a street-level panoramic view of a particular location. To create this view, Defendant sends passenger cars equipped with panoramic digital cameras to drive around and photograph the streets. Plaintiffs live on a private road marked with a “Private Road, No Trespassing†sign. Plaintiffs discovered that Defendants had driven a car up their road and into their driveway, capturing a photograph of their home and swimming pool without Plaintiffs’ consent. Plaintiff sued for invasion of privacy and trespass. The federal trial court dismissed all of Plaintiff’s claims, finding that the invasion of privacy claim did not show that the intrusion was highly offensive to a reasonable person and that the trespass claim failed for lack of an allegation of damages. Plaintiffs appealed.

Issue.

1) For an allegation to state a claim for invasion of privacy based upon an intrusion upon seclusion theory, must the intrusion be of a type that would be substantial and highly offensive to a reasonable person? 2) For an allegation to state a claim for trespass, must facts alleging damages from the trespass be pled?

Held.

(Jordan, J.) 1) Yes. In order to state a claim for invasion of privacy based upon intrusion upon seclusion, the intrusion must be of a type that would be substantial and highly offensive to a reasonable person. One of the allowable theories for an invasion of privacy claim is that of intrusion upon seclusion. However, to state a valid claim, a plaintiff must allege an intentional intrusion that was substantial and highly offensive to a reasonable person, and must allege facts to show that a person of ordinary sensibilities would have been shamed or humiliated or suffered mentally as a result of the intrusion. No reasonable person would have been offended as a result of a car entering his driveway and photographing his house. Any visitor or delivery man would have the same view. It is also significant that Plaintiffs do not claim that the photos included their images at all. The determination of whether a reasonable person would find the intrusion offensive can be made at the pleading stage. As such, the invasion of privacy suit fails to state a claim and the district court properly dismissed it. Affirmed as to this claim.

2) No. In order to state a claim for trespass, a plaintiff does not need to plead damages. Trespass is a strict liability tort that occurs when one intentionally intrudes upon the property of another without justification or consent. Under the applicable state law, damages are not required to sustain a claim of trespass. Plaintiffs have alleged that Defendant entered their property without permission. This is sufficiently pled. On remand, Plaintiffs can either prove actual damages or pursue nominal damages as a result of the trespass. The district court erred in dismissing this claim. Reversed as to the trespass claim.

Affirmed in part, reversed in part, and remanded.

Discussion.

Other theories that may be claimed in an invasion of privacy suit include appropriation of another’s name or likeness, unreasonable publicity given to another’s private life, and publicity that unreasonably places the other in a false light before the public. In this case, Plaintiffs had also claimed invasion of privacy based upon unreasonable publicity given to private life. This claim was also rejected because it required the publicity to be highly offensive to a reasonable person. As the court had already concluded, for purposes of the intrusion upon seclusion claim, that Defendant’s conduct was not highly offensive to a reasonable person, the claim was dismissed.