Proving Constructive Knowledge with Google Maps

By Matt Kahn

Proving a land owner’s prior knowledge of a hazard is critical in a premises liability case. Frequently, no concrete evidence establishing prior knowledge exists. Now, in cases involving outdoor hazards, however, it is possible to use Google Maps to present time-stamped images showing the hazard and, in some instances, its condition over time.

This article discusses how to prove your case using Google Maps, as well as a growing trend among trial courts to take judicial notice of Google Maps images. It also provides a step-by-step guide for obtaining certified original images from Google as a failsafe, in the event judicial notice is not taken.

Proving Your Case Using Google Maps
In Georgia, property owners and occupiers have a duty to keep their premises safe. While legal standards vary depending on the relationship between the injury victim and the landowner, generally, a plaintiff can recover for injuries caused by a known hazard on the landowner’s property. In a typical case, the plaintiff carries the burden of proving two elements. First, the plaintiff must prove that the defendant had actual or constructive knowledge of the hazard. Second, the plaintiff must show that, despite exercising ordinary care, he or she lacked knowledge of the hazard.

Georgia courts hold property owners responsible for injuries caused by hazards on their premises under a theory of “constructive knowledge” where a hazard has existed for so long that the only reasonable explanation for the landowner’s failure to remedy it is the absence of reasonable care. Thus, where actual knowledge of the hazard is lacking, proving constructive knowledge through proof of the defect’s existence over time can be a win for a plaintiff on liability. However, it can be difficult to prove the existence of a hazard over time. This is particularly true where the only evidence of the hazard’s long-standing existence is developed in the form of witness testimony alone.

This is where Google Maps can become an invaluable tool. Google spends substantial resources taking time-stamped photographs of everything outdoors, including buildings, parking lots, driveways, and roads. Google uploads those images to its Google Maps platform, where web-users can explore both aerial and “street level” views of locations at zero cost. Google has been collecting this data since 2007 and it periodically updates its database, allowing users to observe historical “street views” of a specific location. Thus, a lawyer prosecuting an outdoor premises case can use this tool to observe photographs of a specific location, or hazard, over a period of 10+ years. In fact, often a location or hazard can be viewed over time every few months from a date certain forward.

In one recent case, for example, Fried & Bonder used Google Maps to prove “constructive knowledge” of a road hazard in a case against a municipality. Our client was riding her bicycle on a city street when her front tire dipped into a large depression. She was immediately catapulted face first onto the pavement. Her injuries were severe. Using Google Maps, we were able to generate “street level” images that showed the depression had existed, and worsened, since at least 2007. Over the municipality’s objection, the trial court allowed the Google Maps images into evidence. Once the trial court allowed those images, the city was quick to offer our client a favorable settlement.

Judicial Notice of Google Maps Images
The Georgia Evidence Code permits judges to take judicial notice of a fact which is not subject to reasonable dispute because the accuracy of the fact cannot be reasonably questioned. The trial court may take judicial notice, whether or not requested by a party, at any stage of a proceeding.

A growing number of judicial opinions in both civil and criminal cases reflect trial and appellate courts increasingly taking judicial notice of information found on Google Maps. Indeed, every Circuit Court of Appeals that has addressed this issued has “take[n] judicial notice of a Google map and satellite image as a ‘source[ ] whose accuracy cannot reasonably be questioned.’” Even the United States Supreme Court has relied upon Google Maps to calculate distance.

While no Georgia appellate case has directly addressed the issue of judicial notice of Google Maps images, courts in the Eleventh Circuit have taken judicial notice of Google Maps images. In one such opinion, former District Court Judge, William S. Duffey, Jr. stated that “[p]robably the most common online source of judicially noticed facts is Google Maps.”

The argument for judicial notice of Google Maps is that the image is from a source whose accuracy cannot reasonably be questioned because Google methodically records data and uploads it to its website. The counter-argument is that the Google Maps images are not, in fact, reliable because they are not singular, seamless images, but rather, a series of images which are collected and stitched together.

Because judicial notice of Google Maps is not yet a sure thing (though we certainly believe it should be and urge all readers to move the dial on this issue in front of our state and federal judges wherever possible), the sooner a plaintiff in a premises case raises the issue of admissibility of Google Maps images, the better. By raising the issue early, it will leave the plaintiff with time to pursue other means of admitting the images if the trial court refuses to take judicial notice.

Step-by-Step Guide to
Subpoena Google Maps Images
If a trial court refuses to take judicial notice of Google Maps images, the plaintiff should seek certified “originals” of the Google Maps images directly from Google using the following steps:

1. First, obtain a Georgia subpoena for the production of “original” photographs, images, or other pictures showing the area relevant to your claims, whether it is the parking lot of a restaurant or a municipal roadway.

Tip: When we draft these subpoenas, we use both the GPS coordinates of the relevant area and we will attach a Google Maps print-out of the area. An example of an individual request looks like this: “Please produce all original photographs, images, or other pictures showing the Subject Area at the GPS coordinates 33.7397551, -84.3576532 (as depicted in Exhibit “A-1”). In addition to, or in lieu of the GPS coordinates, you can also directly include the URL to the Google Maps image that you are seeking to provide more specificity.

2. Since Google is a California-based company, you will need to domesticate the Georgia subpoena in a California Superior Court and serve it upon Google. This is done by completing the proper California form accompanied by the Georgia subpoena. It will help to work with local counsel in California to complete the form and serve the subpoena on Google pursuant to the Uniform Interstate Depositions and Discovery Act (“UIDDA”) and California Civil Procedure Code 2029.100, et seq.

Tip: Utilize the American Association of Justice to find a California lawyer to help. The Motor Liability Listserv is a great place to start. If you are not currently a member of AAJ, you should consider joining. If you are a member, but do not subscribe to the Listserv, you should… it is an invaluable resource.

Google’s Custodian of Records will accept subpoenas issued from the Santa Clara Superior Court via personal service at the following address: 1600 Amphitheatre Parkway, Mountain View, California, 94043.

3. Google will likely send a boilerplate objection letter as it has with us in the past. Google objections cite to Ninth Circuit case law holding that the trial court should take judicial notice of the Google Maps images because “[a]ny person may download an image from the Internet and authenticate it for admission.” You can short circuit a lot of e-mail back-and-forth by requesting a phone call with Google staff counsel. Once you explain that the local court will not take judicial notice, they will likely be fairly responsive.

Tip: Finding an email address for Google’s legal department is nearly impossible, so here it is as it currently exists:

4. The final step is working with Google to obtain the correct Google Maps images and a certificate of authenticity from Google attesting to the accuracy of the images. In our experience, the process takes about three weeks from issuance of the Georgia subpoena to obtaining the images.

Tip: Once communication is established, do not shy away from getting EXACTLY what you need as it relates to the precise images. The production we originally received did not contain angles of the roadway defect that we liked, so we requested additional angles and vantage points. We also made sure that the certification included the language we needed.

In the event a court will not take judicial notice of the images, these steps will overcome any objections to admissibility. As further support, and even before admitted, the astute practitioner will place the images in front of all defense witnesses and experts and get admissions that the Google Images depict the hazard on the date noted. Please contact us directly if you need any assistance—we will be happy to share our forms and briefing on the issue.

No Georgia appellate court has directly addressed judicial notice of Google Maps images. As more and more courts consider this issue, it is only a matter of time before the Georgia Court of Appeals issues an opinion. Until then, we should continue pushing this argument until it becomes routine. At the same time, begin the process of subpoenaing the originals to cover all your bases. Using Google Maps can be critical to proving constructive knowledge in your outdoor premises case and should be a part of your arsenal. l

Matt Kahn is an associate with Fried & Bonder, LLC, where he focuses his practice on representing individuals who have been seriously injured or killed due to the negligence or wrongful conduct of others. Matt is an active member of GTLA and AAJ. He can be contacted at or (404) 924-4157.


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