Property Law Developments—Joseph William Singer

The Third Circuit allowed Pittsburgh couple Aaron and Christine Boring to proceed with their trespass suit against Google brought after a Google employee entered their land despite a “No Trespassing” sign to take pictures of their house and pool for use on Google Maps street view. Boring v. Google Inc., 2010 WL 318281 (3d Cir. 2010). The trial court had thrown out the trespass claim because the Borings had not alleged any damage from the trespass but the Third Circuit held that Pennsylvania law (like the law elsewhere) does not require proof of damage to find a trespass. Any unauthorized entry onto another’s land constitutes a trespass unless privileged. See article. On remand, if the trespass is proved factually, the land owners would be entitled at least to nominal damages, perhaps of $1. This would obviously not deter any business from trespassing unless it would be hurt by adverse publicity from such trespasses. The court refused to allow damages for harm caused by posting the photos on Google’s website because the court found that such postings would not be “highly offensive to a person of ordinary sensibilities” and thus would not be protected by the tort of invasion of privacy. Moreover, any such damages would be caused by publication of the photos, not by the trespass itself, and thus would not be appropriate as trespass damages.

It is unclear why the courts have not developed a rule that allows compensation for the indignity of an unauthorized entry in appropriate cases either to more fully compensate the owner for the invasion of property rights or to deter such activity by an actor likely to repeat the conduct. Compare the fair housing laws which give a right to compensatory damages for persons denied housing because of race even if they find substitute housing immediately afterwards and no economic injury can be shown. It is an interesting question whether juries should be allowed to give the equivalent of civil rights damages for trespasses in particular kinds of cases. Recall the famous case of Jacque v. Steenberg Homes, Inc., 563 N.W.2d 154 (Wis. 1997), in which the court got around this problem by awarding punitive damages of $100,000 against a mobile home company that dragged a mobile home across the Jacque’s property against their express wishes. Query whether the Boring case would an appropriate one for punitive damages; is the “No Trespassing” sign equivalent to an order to stay off after requesting permission to enter?