Are GPS devices' navigational capabilities a 'product' for purposes of product liability law or a 'service'?
3-5-2008 National:
Most Americans are completely dependent on personal computers, cell phones, personal digital assistants, MP3 players and other consumer devices. Like many other manufactured products, these devices sometimes fail to perform as designed. And, sometimes, disappointed consumers sue.
One of the hottest consumer technology items this past holiday season was the global positioning system (GPS) navigational device, which uses triangulation, satellite technology and built-in digital maps to pinpoint the location of the device and, if desired, map a route to a desired location.
According to one recent report, in 2008 the number of GPS handsets with navigation functions will grow to 20 million.[FOOTNOTE 1] Millions of Americans rely on the devices regularly to get them from point A to point B in unfamiliar cities and towns across the country.
However, Bo Bai, a 32-year-old computer technician from Sunnyvale, Calif., may regret that the rental car he was issued on a business trip earlier this year was equipped with a GPS device. Driving in New York's Westchester County in the early evening of Jan. 3, Bai was following the instructions of the car's GPS system to get to the Saw Mill River Parkway. According to reports, as Bai crossed the Metro-North commuter railroad tracks in Bedford Hills, the device instructed him to turn right. He did so, and promptly steered his car onto the tracks. Bai tried unsuccessfully to steer the car off of the tracks, and then he heard the rumble of an approaching commuter train. He got out of the car and waived his arms in an effort to stop the approaching train. The train slowed down enough to avoid injuring Bai, the train crew and any of the passengers. The rented Ford Focus was not so lucky, however, and considerable damage was also done to about 200 feet of electrified track.[FOOTNOTE 2]
The local police issued Bai a summons for obstructing a railroad crossing. What's more, the Metropolitan Transportation Authority says that it is going to seek to hold Bai liable for the damage to the train and the track, as well as other costs and loss of revenue to the MTA (which had to cancel three trains and delay the departure of 10 others by up to 90 minutes).[FOOTNOTE 3]
To our knowledge, no civil legal claims have been filed in this case, but one can certainly speculate about the types of legal finger-pointing that might arise out of incidents such as this one.
For instance, a driver could claim that when he purchased the GPS navigational device, he did so in reliance on the manufacturer's implicit (if not express) representations and warranties that it would direct him from point to point along recognized roadways, and not along the trackbed of a commuter railroad. A driver could also assert that a navigational device which directs its users into hazardous conditions is either defectively designed or should be required to be sold with prominent warnings and instructions to its users so that accidents are likely to be prevented.
Presumably, a manufacturer would point to its limited warranty and would assert that it is not liable for any incidental, special, indirect or consequential damages resulting from the use or misuse of the device. The manufacturer would assert that drivers should not completely turn off their common sense when switching on a GPS navigational tool, and that it is pretty much a given that driving an automobile along an operating railroad track is not a good idea.
Moreover, most GPS devices come with fairly explicit warnings which say things like:
When navigating, carefully compare information displayed on the unit to all available navigation sources, including information from street signs, visual sightings and maps. For safety, always resolve any discrepancies or questions before continuing navigation and defer to posted road signs;
and
The unit is designed to provide route suggestions. It is not designed to replace the need for driver attentiveness regarding road closures or road conditions, traffic congestion, weather conditions or other factors that may affect safety while driving.[FOOTNOTE 4]
The manufacturers could therefore argue that disregarding visual cues like railroad tracks in favor of blind reliance on the GPS navigational device constitutes misuse of the product and thereby voids the limited warranty. (A manufacturer would likewise assert that instructions and warnings such as those described above are more than adequate to defeat a claim of strict liability under the circumstances presented in the facts of Bai's case, for example.)
Of course, the effectiveness of purported limitations on warranty liability varies from state to state.
Another interesting question is whether the navigational capabilities of a GPS device constitute a "product" for purposes of product liability law or a "service."
If the former, it is possible that the manufacturer could be found strictly liable for defects in the product. If the latter, defects might still give rise to claims of negligence, misrepresentation or other legal theories, but the manufacturer would likely be able to avoid strict liability for the defective design of the product, or for failing to provide adequate instructions or warnings.
A driver would likely assert that a GPS navigational device is a tangible consumer product, just like a microwave oven, and although it requires the user to press buttons to obtain a desired endpoint (a destination in the case of the GPS; a warmed-up plate of turkey leftovers, in the case of the microwave), its essence is a physical product. By contrast, a manufacturer could counter that the essence of the device is that it provides the user with the electronic service of identifying a highly individualized route between geographic points.
LIMITED CASE LAW
There do not appear to be any cases directly on point. Nevertheless, some analogous authorities may shed a little light on the direction in which these cases could proceed.
Some courts have found that computer software is a "good" rather than a "service" for purposes of the Uniform Commercial Code.[FOOTNOTE 5] The reasoning is that although a "[c]omputer program may be copyrightable as intellectual property," the fact remains "that once in the form of a floppy disc or other medium, the program is tangible, moveable and available in the marketplace." On the other hand, commentators have argued that, to the extent that software constitutes a means of conveying information, it should be analogized to books and magazines, which have traditionally avoided characterization as products for liability purposes.[FOOTNOTE 6]
There does appear to be a consensus, however, that manufacturers and publishers of mass-produced aeronautic charts can be found liable under product liability law-based standards -- and may even be subject to "strict liability" -- in cases in which the charts cause or contribute to a plaintiff's injuries or death.
Saloomey v. Jeppesen & Co.[FOOTNOTE 7] involved the death of a pilot and members of his family in a West Virginia airplane crash. The decedents' representatives claimed that the accident was caused by faulty navigational charts and brought claims against the publisher of the charts under three separate legal theories: negligence, breach of warranty and strict products liability. The jury answered special interrogatories, finding the defendant liable under all three theories.
On appeal, Jeppesen argued, among other things, that the trial court erroneously determined that the navigational charts are products rather than services. The 2nd U.S. Circuit Court of Appeals rejected that argument, finding that the charts published by the defendant reached the pilot "without any individual tailoring or substantial change in contents -- they were simply mass-produced."[FOOTNOTE 8]
Under these circumstances, the court found, the Restatement (Second) of Torts §402A envisions the imposition of strict liability.[FOOTNOTE 9] According to the court, "[b]y publishing and selling the charts, Jeppesen undertook a special responsibility, as seller, to insure that consumers will not be injured by the use of the charts."[FOOTNOTE 10]
The court concluded that Jeppesen's position that its charts provided no more than a "service" "ignores the mass-production aspect of the charts. Though a 'product' may not include mere provision of architectural design plans or any similar form of data supplied under individually-tailored service arrangements ... the mass production and marketing of these charts requires Jeppesen to bear the costs of accidents that are proximately caused by defects in the charts."[FOOTNOTE 11]
Of course, whether this argument is applicable to GPS device manufacturers remains to be seen. We will all watch carefully as the legal landscape of this issue is mapped out.
Peter C. Neger is a partner in the New York office of Bingham McCutchen. His practice is substantially devoted to complex and class action litigation.
::::FOOTNOTES::::
FN1. "By 2008, the Number of GPS Handsets With Navigation Functions Will Be Up to 20 Million," Reuters, Jan. 9, www.reuters.com/article/pressRelease/idUS114222+09-Jan-2008+BW20080109 (accessed Feb. 19).
FN2. This is not the only reported incident involving a car, a GPS device and a speeding locomotive. Last spring, BBC News reported an incident in England in which a young woman was directed across a set of train tracks en route to visit her boyfriend in a nearby town. So intent was she upon following the directions provided by her device that she neglected to notice that the gate she had come to -- and entered -- was a railroad crossing. Again, most fortunately, the only real casualty of the incident was a much-loved Renault Clio. See "Sat Nav Driver's Car Hit by Train," BBC News, accessed Feb. 19 at http://news.bbc.co.uk/go/pr/fr/-/1/hi/wales/south_west/6646331.stm.
FN3. See N. Neroulias, "Driver Cited in Bedford Train-Car Crash Caused by GPS Mishap," Westchester Journal News, Jan. 3.
FN4. See Garmin Important Safety and Product Information, "Warnings" (August 2007)
FN5. See, e.g., Advent Systems Limited v. Unisys Corporation, 925 F.2d 670, 675 (3d Cir. 1991).
FN6. See, e.g., R.T. Nimmer, Law of Computer Technology (updated September 2007), §15:108; Winter v. G.P. Putnam's Sons, 983 F.2d 1033 (9th Cir. 1991) (declining to apply product liability law standard where personal injuries resulted from plaintiffs' ingestion of wild mushrooms prepared in reliance on book entitled "The Encyclopedia of Mushrooms"); Birmingham v. Fodor's Travel Publications, Inc., 73 Haw. 359, 833 P.2d 70 (1992) (declining to apply a product liability-based "duty to warn" on publisher of book where plaintiffs were injured while swimming at beach which was featured in defendant's travel guide).
FN7. 707 F.2d 671 (2d Cir. 1983).
FN8. Id., 707 F.2d at 676.
FN9. Id.
FN10. Id., 707 F.2d at 676-77.
FN11. Id., 707 F.2d at 677 (internal citations omitted). Accord Brocklesby v. U.S., 767 F.2d 1288 (9th Cir. 1985). ..more..
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