Can You Sue an App?

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When the App Store launched on the original iPhone in July 2008, its selection of apps was limited to just over 500. Since then, the number of apps available across all iOS platforms has grown tremendously. In January 2017, the total number of App Store apps eclipsed 2.2 million. That same month, the number of apps available in the Play Store for Android devices exceeded 2.7 million.

Today, you can find an app for just about anything. Unfortunately, as apps begin to take over more of our daily lives, they also expose us and those around us to new and unanticipated risks of harm. For example:

  • In 2015, a pedestrian sued Uber and one of its drivers following an accident in which she was severely injured and her boyfriend was killed. She claimed that the ridesharing pioneer should have known that its drivers would be violating state laws against distracted driving by using the Uber app.
  • In 2016, a lawsuit was filed against popular photo app Snapchat following a horrendous collision that left one driver with traumatic brain injury and wheelchair-bound. The collision was caused by an 18-year-old driving over 100 miles per hour. She was inspired to do so by a Snapchat filter that would measure her speed and list it on her photos.
  • Also in 2016, property owners in New Jersey and Michigan sued Pokémon Go developer Niantic for causing players of the popular augmented-reality game to trespass on their property.

These examples might make the question posed in this blog title seem unnecessary — obviously, the answer is “yes,” right? In reality, the law in this area remains largely undeveloped. For instance, the lawsuit against Snapchat was dismissed based on a questionable application of the federal Communications Decency Act. Although there’s still some uncertainty in this area of the law, we believe the application of current law to apps should be relatively straightforward.

Legal Issues Involved in an App Lawsuit

Although the mobile technology that runs apps is still relatively new, the concept of an app is fundamentally ancient: It is a product or service offered by a business to consumers. As such, applying existing law to an app is not as difficult as it might seem at first — but that doesn’t mean successfully suing an app (or, to be more precise, its developer) is easy.

Here are some issues that will arise when applying current law to apps:

  • Who do you sue? Although we’ve been referring to suing “an app,” technically any lawsuit would be filed against an app’s developer, not the app itself. The developer is usually identified in the App Store or Play Store listing for the app, as well as in an “About” section within the app itself.
  • Where do you sue? The answer to this question may be quite complicated. In the first place, if the app is made available for download within Ohio, then the developer is likely subject to suit here. But the app’s terms of use may change that, as we explain below.
  • What statute of limitations applies? Ohio law recognizes multiple statutes of limitations. Which one applies to a claim depends on the nature of the claim. For example, if you’re claiming the app caused a personal injury, you generally have two years after your injury to file a lawsuit.
  • Can you prove the elements of your cause of action? Here is where things start to get tricky. Take a simple negligence claim, for example: You must prove that a person owed you a duty, breached that duty (i.e., was negligent), and that breach caused damages to you. Normally the first element — duty — is straightforward. But suppose that you’re a third party injured by an app’s user, like the plaintiffs in the three lawsuits we cited above. Does the app developer, in such a case, even owe you a duty?
  • What have you agreed to? Finally, if you are the user of an app, there’s one more critical question: What did you agree to when you started using it? An app’s terms of use can be an enforceable contract — even if you never actually read them. Those terms can dramatically impact what rights you have against the app’s developer. For example, they could limit where you can sue; require you to arbitrate your claim, rather than suing over it; or limit the amount of damages you can recover.

Why You Need a Lawyer to Sue an App

As you can tell from the above discussion, although the application of existing law to developing technologies like apps should generally be straightforward, every case is different, and those differences introduce complexities. Consequently, it is all the more important to hire an experienced Ohio lawyer when you are considering suing an app. A lawyer can help you anticipate the legal arguments the defendants will raise, and build your case to successfully rebut them.

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