Third Circuit Upholds Dismissal of Lower Court Google “Street View” Decision on Several Counts, But Reverses On Trespass

In Boring v. Google, the plaintiffs asserted claims against Google as a result of the company’s “Street View” program for “invasion of privacy, trespass, injunctive relief, negligence, and conversion” and sought both compensatory and punitive damages and attorneys’ fees. A lower court dismissed the claims and the plaintiffs appealed to the Third Circuit. The Court said in part:

Pennsylvania law recognizes four torts under the umbrella of invasion of privacy: ” [1] unreasonable intrusion upon the seclusion of another; [2] appropriation of another’s name or likeness; [3] unreasonable publicity given to another’s private life; and [4] publicity that unreasonably places the other in a false light before the public.” …The District Court treated the Borings’ complaint as asserting claims for both intrusion upon seclusion and publicity to private life, and it held that the complaint failed to state a claim for either, focusing on the lack of facts in the complaint to support a conclusion that the Street View images would be highly offensive to a reasonable person. The Borings contend that the District Court was wrong to decide, on a 12(b)(6) motion to dismiss, that “a reasonable person would not be highly offended” after having discovered, as the Borings did, that someone “entered onto secluded private property [and] took 360 [degree] pictures ….

To state a claim for intrusion upon seclusion, plaintiffs must allege conduct demonstrating “an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable person, and aver sufficient facts to establish that the information disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities.” …Publication is not an element of the claim, and thus we must examine the harm caused by the intrusion itself. …

No person of ordinary sensibilities would be shamed, 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 Restatement cites knocking on the door of a private residence as an example of conduct that would not be highly offensive to a person of ordinary sensibilities. … The Borings’ claim is pinned to an arguably less intrusive event than a door knock. Indeed, the privacy allegedly intruded upon was the external view of the Borings’ house, garage, and pool — a view that would be seen by any person who entered onto their driveway, including a visitor or a delivery man. Thus, what really seems to be at the heart of the complaint is not Google’s fleeting presence in the driveway, but the photographic image captured at that time. The existence of that image, though, does not in itself rise to the level of an intrusion that could reasonably be called highly offensive.

Significantly, the Borings do not allege that they themselves were viewed inside their home, which is a relevant factor in analyzing intrusion upon seclusion claims. …The Borings suggest that the District Court erred in determining what would be highly offensive to a person of ordinary sensibilities at the pleading stage, but they do not cite to any authority for this proposition. Courts do in fact, decide the “highly offensive” issue as a matter of law at the pleading stage when appropriate. … The Borings also suggest that the Court erred in expressing skepticism about whether the Borings were actually offended by Google’ sconduct in light of the Borings’ public filing of the present lawsuit. However, the District Court’s comments came after the Court had already concluded that Google’s conduct would not be highly offensive to a person of ordinary sensibilities. Thus, the Court properly applied an objective standard in deciding whether the conduct was highly offensive.

In sum, accepting the Borings’ allegations as true, their claim for intrusion upon seclusion fails as a matter of law, because the alleged conduct would not be highly offensive to a person of ordinary sensibilities.

…

To state a claim for publicity given to private life, a plaintiff must allege that the matter publicized is “(1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public.”

…

For the reasons just described with respect to the intrusion upon seclusion claim, we agree with the District Court that the Borings have failed to allege facts sufficient to] establish the third element of a publicity to private life claim, i.e., that the publicity would be highly offensive to a reasonable person. It is therefore unnecessary to address the other three prongs.

In conclusion, accepting the Borings’ allegations as true, their claim for publicity given to private life fails as a matter of law, because the alleged conduct would not be highly offensive to a person of ordinary sensibilities.

…

The District Court dismissed the Borings’ trespass claim, holding that trespass was not the proximate cause of any compensatory damages sought in the complaint and that, while nominal damages are generally available in a trespass claim, the Borings did not seek nominal damages in their complaint. While the District Court’s evident skepticism about the claim may be understandable, its decision to dismiss it under Rule 12(b)(6) was erroneous.

Trespass is a strict liability tort, “both exceptionally simple and exceptionally rigorous.” …Under Pennsylvania law, it is defined as an “unprivileged, intentional intrusion upon land in possession of another.” …Though claiming not to have done so, it appears that the District Court effectively made damages an element of the claim, and that is problematic, since “[o]ne who intentionally enters land in the possession of another is subject to liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest.” …

Here, the Borings have alleged that Google  entered upon their property without permission. If proven, that is a trespass, pure and simple. There is no requirement in Pennsylvania law that damages be pled, either nominal or consequential. … It was thus improper for the District Court to dismiss the trespass claim for failure to state a claim. Of course, 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.  For now, it is enough to note that they “bear the burden of proving that the trespass was the legal cause, i.e., a substantial factor in bringing about actual harm or damage”….

For the foregoing reasons, we will affirm the District Court’s grant of Google’s motion to dismiss the Borings’ claims for invasion of privacy, unjust enrichment, injunctive relief, and punitive damages. We reverse, however, with respect to the trespass claim, and remand with instructions that  the District Court permit that claim to go forward.

 The case is Boring v. Google, 2010 U.S. App. LEXIS 1891 (nonprecedential).