3.5.3 Scenario 4 - Assume that a farmer buys a "precision farming" system consisting of
software, computer hardware, and computerized variable rate farming equipment from a large
equipment manufacturing company. The new computer controlled system tracks the location of
farm machinery very precisely through the use of a global positioning system receiver mounted
on the farm equipment and is able to apply fertilizers, pesticides, and herbicides at variable rates
in order to match the needs of the soil and groundcover conditions as identified in a digital
spatial dataset for the farmers fields. The system is also able to measure the productivity of each
square meter of soil as crops are harvested. The farmer hires a local engineering consulting firm
to accomplish soil tests in a dense grid over his fields and to insert this information along with
other physical data specified by the manufacturer into the computerized system. The farmer
implements precision farming of his fields. After one of the best growing seasons on record, the
farmer experiences one of the worst crops he has ever had. Through an investigation the farmer
discovers that chemical fertilizers, weed sprays, and insecticides were sprayed by the automated
machinery in reverse locations to where they were needed due to a software error in the latest
version of the software. The inappropriate spraying resulted in poisoning of the ground in some
areas, killing off the crop in other areas, and allowing insect infestations in other areas. Evidence
shows that the engineering firm made no errors in data collection and inserted the required
information as directed by the manufacturer''s instructions. The farmer''s standard form contract
supplied by the instrument manufacturer states that "the software system and data are supplied
AS IS without warranties of any kind, either expressed, implied, or statutory, including but not
limited to warranties of merchantability and fitness for a particular purpose." The software
component of the system containing the defect was developed and distributed by a very large
GIS software company with whom the farmer did not have a direct contract.
Discussion: Under contract principles, the farmer might pursue breach of implied warranties of
fitness for use and merchantability as well as any express warranties that might have been made.
However, to pursue these warranties the farmer would have to overcome the clause in the
contract stating that the "software system and data are supplied AS IS without warranties of any
kind ..." The farmer might argue that the contract clause on its face is unconscionable since
application of the disclaimer clause would allow the system producer to provide useless and
harmful systems to consumers without any responsibility for the harm caused by the systems nor
any contract benefit for the consumer. If the court as a matter of law finds the clause to have
been unconscionable at the time it was made, the court would probably limit the clause as to
avoid any unconscionable result.38 Resort to normal contract principles in determining damages
would then seem appropriate. Deeming the entire contract unconscionable with resort in entirety
to negligence principles for resolving the liability issues would appear to be inappropriate, except
perhaps if the court found from the evidence an extreme disparity in bargaining power between
the parties.
Because the dispute involves improper performance as opposed to nonfeasance, the possibility of
pursuing a parallel negligence claim with the contract claim exists. Negligence in this case
arguably involves both physical harm to property as well as economic damages. It appears
reasonably foreseeable that a software error could cause physical damage to farmland and crops
if the software was used in conjunction with computer controlled farm equipment as intended by
the suppliers and as used under normal conditions as was done in this instance. Although
pursuing a negligence claim in parallel with a contract claim is complex and gives rise to
difficulties in meeting the conflicting underlying objectives of tort law versus contract law,
protecting the public against the hazardous harms caused by this type of defect and the argument
that suppliers are in a better position than users to insure against the losses caused by defective
products may be reason enough to allow the parallel action.
It is also interesting to explore whether a strict products liability claim might be successful in the
instant case. Although no person was physically injured by the defective product, the fact
situation seems to meet the requirements of Restatement of Law (Second) Torts § 402A of being
"unreasonably dangerous" to a user''s property. The software defect is arguably more in the
nature of a "manufacturing defect" than a "design defect" in that the defect was unintended and
didn''t meet the software developer''s own standards. The cost and feasibility of testing the
software to see if it worked properly and to correct it prior to its release to consumers seems very
small compared to the risk of physical injury and the gravity of potential harms that might be
caused by the malfunctioning of the system. The software developers and the machinery
manufacturers were fully aware that their products would be used in the application of dangerous
farm chemicals. Although the physical harm was to property only in this instance, the hazard
and defect represent a significant safety hazard to humans as well. Because of the inherent
safety hazards and because of failing to establish safety conditions designed to avoid
unreasonable risks of harm, the type of physical damage involved seems to be of the type that
should be allowed to be included within the ambit of strict liability.
Section(1)(b) of §402A additionally requires that the product "is expected to and does reach the
user or consumer without substantial change in the condition in which it is sold." Although a
complex combination of farm machinery, computers, software, and data contributed by various
parties was required to make the system operational, the individual components were not altered
by the user. The software containing the defect remained unaltered by the consumer. Thus,
those in the chain of generating income from the sale of the precision farming system should not
be able to escape their duty to provide a safe product by claiming that the system was changed
when applied to a specific farm site. The system was implemented in conformance with the
manufacturers instructions and the application of the system to a particular site did not involve
substantially changing the condition in which it was sold to and received by the farmer.
3.5.4 Scenario 5 - Assume that a car manufacturer installs a vehicle routing system in its latest
line of automobiles. Drivers are able to insert a CD containing detailed street, address, and
business information for a community and are able to have the computerized system select a
travel route for them based on selected criteria such as shortest time, shortest travel distance, or
all streets of a certain type. The location of the vehicle is tracked as it travels primarily through
use of a global positioning system receiver and the system uses oral voice commands to inform
the driver when an exit is coming, features of interest along the route, turn right, turn left, etc.
An engineering firm has collected street and business data for a local community, has placed it
on a CD, and the CD is now being used by consumers in routing themselves through the
metropolitan area. It appears that all data collected by the engineering firm is spatially accurate
and all other information such as street names, street directions, names of businesses, locations
of traffic lights and signs, and similar physical features was accurate when collected. The
owners manual for the system indicates that the system is provided solely as an aid for
determining routes and warns that drivers should rely primarily on their own observations to
check the oral routing instructions against potentially conflicting traffic and street conditions. A
similar abbreviated notice is provided on the dashboard.
A thirty year old male driver bought the CD at a local discount store and has been using it for
several months to aid him in routing himself through the city to deliver flowers in his part-time
job with a small florist. After typing in the addresses of his deliveries for the day, the system
calculates a route. Half way through his deliveries the system gives him oral instructions to turn
right at the next street. He turns right and drives down a major one-way street in the wrong
direction. This results in a head-on collision with another vehicle and he receives major physical
injuries. Upon investigation, it is determined that no data was entered into the system wrongly
nor was there a malfunction in the software. Rather, it is determined that the street recently was
changed from a two-way street to a one-way street by the city.
Discussion: Under the facts, there is no manufacturing defect in the provided vehicle routing
software nor in the separately purchased dataset. However, the injured party may argue that the
system was defectively designed and poses too great a threat to physical injury from a safety
hazard perspective as designed and implemented. Any reasonable system designer should have
known that the directions of streets, locations and kinds of traffic controls, and similar physical
features affecting safe routing decisions could be expected to change over time and the system
and data providers should have provided a means to update the information when it changed. It
may be argued that the system is so unreasonably dangerous with the current design defect that it
should never have been placed on the market. Placing it on the market should have been delayed
until such time as remote data upgrades to such systems could have been reasonably and
responsibly provided or the CD should have been sold under a license agreement with data
upgrades going to the address of the currently registered owner of the vehicle. The gravity and
likelihood of harm due to the inability to provide reliable data upgrades far outweighs the social
benefits of such systems.
Counter arguments are that the system is unavoidably unsafe in certain very limited situations
but the overall social utility of vehicle routing systems is so great that they should not be kept off
the market simply because the technology hasn''t advanced to the point where the systems are
able to be made fail-safe. Unavoidably unsafe products are not "defective" when the danger is
reasonably apparent and the danger of full reliance on oral directions from a computerized
system should have been obvious. Adequate warnings were provided. It was the plaintiff''s
unreasonable misuse of the product that caused the "defect" and therefore no defect exists and no
cause of action exists without that unreasonable misuse.
In the U.S., courts typically would resort to one of three risk-utility analysis methods to
determine whether the design should be deemed to be defective. Depending on the jurisdiction,
plaintiffs and defendants would couch their arguments to address a pure negligence standard, a
state-of-the-art analysis, or a consumer expectations test.39 If the jury did find the system to be
in a defective condition unreasonably dangerous to the user and found the defect to be the cause
of the injury, those jurisdictions following comparative negligence approaches for determining
the distribution of damages probably would reduce the award to the plaintiff by the plaintiff''s
proportionate share of responsibility in causing the injury as determined by the jury.
4 Summary
Liability is a creation of the law to support a range of important social goals such as avoidance of
injurious behavior, encouraging the fulfillment of obligations established by contracts, and the
distribution of losses to those responsible for them. If decisions are made based on geographic
data or products produced by other than the user, there will always be liability exposure.
Minimizing losses for users of geographic data products and reducing liability exposure for
creators and distributors of such products is achieved primarily through performing competent
work and keeping all parties informed of their obligations.
Liability in data, products and services related to geographic information systems is likely to be
determined in most instances by resort to contract law and warranty issues. This is true whether
geographic data products are custom developed for specific clients or mass produced for the
general consumer market. Tort theories, such as negligence and strict liability, come to the
forefront when preventing harms to the public generally arises as an issue.
In this chapter, fundamental contract and tort liability concepts were reviewed followed by
illustrations of how liability issues might arise and be addressed in a range of GIS conflict
scenarios. Liability burdens arising under legislation relating to specific substantive topics such
as intellectual property rights, privacy rights, anti-trust laws, and open records laws were not
addressed by the chapter. Assessing liability exposure arising under statutory law requires
consideration of the specific language of the legislation in each nation or other jurisdiction. In
addition, this chapter did not address the potential immunity of government agencies from
liability for their geographic information products. Again, the availability of immunity for
government agencies from damages varies among nations.40 Finally, even though many
geographic information products are being transferred across international boundaries and
geographic data forms a significant component of the global information infrastructure, this
chapter did not address the likely effects of international agreements on liability for injuries
resulting within world trade contexts.41 All of these additional issues should be considered when
relevant to geographic information supplier and consumer relationships

In the U.S. it is probably safe to conclude that government GIS offices assume at least some liability exposure in
collecting and disseminating land-related data, whether or not they compete with the private sector in the sale of GIS
data. See Dansby, H. Bishop, “Public Records and Governmental Liability,” in GIS Law, Vol. 1, No. 2. (1992), p.
8-13 and Anderson, Jerome R. and Alan R. Stewart, "