Google Maps. Credit: BigTunaOnline/Shutterstock.com

A Florida appeals court reversed and remanded a $90,000 judgment against Miami in a case that hinged on a Google Maps photograph. It found the photo entered into evidence was unauthenticated and inadmissible in litigation that turned on how images from the popular app varied from the scenes they depicted.

The Third District Court of Appeal ruled in favor of the city. Miami had appealed to the court after unsuccessfully motioning for a new trial in litigation with Miami-Dade County resident Juanita Kho.

Kho filed a lawsuit against Miami in Miami-Dade Circuit Court on July 22, 2014. Her complaint accused the city of negligence, and purported Miami was liable for injuries she sustained in 2010 while walking alongside a sidewalk in southwest Miami. The suit said the plaintiff tripped and fell because of "uneven slabs with improper repairs" on the walkway, and contended the city had failed to maintain the sidewalk properly.

Kho argued the sidewalk's condition constituted a violation of several federal and state guidelines, including the Florida Building Code and regulations under the Americans with Disabilities Act.

As noted by the appellate court, "Kho was required to show that the city had either actual or constructive knowledge of the sidewalk's condition" in order to prove her case. According to the Third DCA, the plaintiff used a Google Maps photograph of the sidewalk dated November 2007 to bolster her argument.

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Read the opinion:

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"Kho wanted to use the photograph to show that the condition had existed since then and that the city should have known about it," the opinion said.

Miami repeatedly objected to the admission of the photograph, contending that it would be impossible to authenticate without testimony from a Google Maps associate or employee. The city's objections were overruled, and the trial court permitted Kho to enter the photograph into evidence.

"Kho introduced the photograph through her expert who testified that there was no substantial difference between the Google Maps photograph and a photograph taken of the same location on the date of Kho's fall," the Third DCA's opinion said. The appeals court noted Kho's expert had not visited the sidewalk before 2010, and remarked no testimony "from a Google Maps representative or anyone with control over or personal knowledge of the Google Maps system" was introduced by the plaintiff.

The lower court subsequently denied the city's motion for a directed verdict, and held the Google Maps photograph demonstrated constructive knowledge of the sidewalk's alleged disrepair. The jury determined Miami was liable for Kho's injuries and awarded her $90,000. The city appealed after multiple motions to challenge the verdict were denied, and a final judgment was entered in favor of Kho.

The Third DCA sided with the city, and held the Google Maps photo was inadmissible as evidence because it was not properly authenticated.

"Without the Google Maps photograph, Kho failed to present legally sufficient evidence of constructive knowledge," the opinion said. "Despite Kho's contention that the admission of the photograph was harmless error, it is evident that it was not. The trial court admitted the unauthenticated photograph and then based its denial of directed verdict solely on that inadmissible evidence."

A footnote in the order said the appeals court would not consider Kho's other arguments in light of its findings concerning the Google Maps image.

"Kho was aware that the city would be contesting the photograph's admissibility and had ample time to prepare the extrinsic evidence necessary to properly authenticate it," the opinion said. "Thus, the city is entitled to judgment in its favor."

Miami City Attorney Victoria Méndez said the city was pleased with the result.

"We believe this is an excellent decision by the 3rd DCA regarding the admissibility of Google Maps evidence," she said in an emailed statement.

Miami litigator Sarah Steinbaum represented Kho during the trial and appellate proceedings. The attorney told the Daily Business Review she and her client intend to appeal the ruling.

"It wasn't just one photograph," Steinbaum said. "Unfortunately the appellate court did not take into consideration any of the other documents or expert testimony from which a reasonable jury could have concluded the city had constructive notice."

 

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