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Editor: Colin Miller
Univ. of South Carolina School of Law

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Sunday, August 19, 2012

Jet Ski Or Not Jet Ski, That Is The Question, But Is Wikipedia Equipped To Answer It?

The subject is well-illuminated in that great repository of contemporary wisdom, Wikipedia....Fire Ins. Exchange v. Oltmanns, 2012 WL 3510440 (Utah App. 2012).

Me (doing my best Joe Pesci): You were serious about that?

In Oltmanns

[Robert] Oltmanns, the insured, and his friend [Brady] Blackner were operating a Honda F–12 AquaTrax personal watercraft on a lake in southern Utah. This kind of personal watercraft is designed for use by a seated driver and up to two additional seated passengers. A lawsuit resulted from injuries sustained in an accident that occurred during this use, and Oltmanns tendered the defense to Fire Insurance Exchange, with whom he was insured under a homeowner's policy.

The policy, however, stated, inter alia, that it did not cover bodily injury that results from the ownership, maintenance, use, loading or unloading of "jet skis and jet sleds...."

Fire Insurance thus moved for summary judgment dismissing the complaint, and the trial court granted the motion, finding that the policy unambiguously excluded coverage for the use of all personal watercrafts. The plaintiffs thereafter appealed, but the Court of Appeals of Utah reversed, finding that

the provision in question is not a model of clarity and at least one additional interpretation is entirely possible. Another common use of the term "jet ski" is in reference to the stand-up variant of personal watercraft, in contradistinction to the sit-down variety, known colloquially—and also imprecisely—as wave runners. The subject is well-illuminated in that great repository of contemporary wisdom, Wikipedia[FN1]:

Jet Ski is the brand name of a personal watercraft manufactured by Kawasaki Heavy Industries. The name is sometimes mistakenly used by those unfamiliar with the personal watercraft industry to refer to any type of personal watercraft; however, the name is a valid trademark registered with the United States Patent and Trademark Office, and in many other countries. The term "Jet Ski" (or JetSki, often shortened to "Ski") is often mis-applied to all personal watercraft with pivoting handlepoles manipulated by a standing rider; these are properly known as Stand-up PWCs. The term is often mistakenly used when referring to WaveRunners, but WaveRunner is actually the name of the Yamaha line of sit-down PWCs, whereas "Jet Ski" refers to the Kawasaki line. Jet Ski, http://en.wikipedia.org/wiki/Jet_ski (last visited August 13, 2012) (footnotes omitted).

FN1. In the past, we might have hesitated to cite Wikipedia in a judicial opinion given its reputation—perhaps not well deserved—for unreliability. See, e.g., Wikipedia Survives Research Test, BBC News (Dec. 15, 2005), http://news.bbc.co.uk/2/hi/technology/4530930.stm (finding rate of error in scientific articles to be about the same as between Wikipedia and Encyclopedia Britannica). But the increasing trend of using Wikipedia in judicial opinions over the last decade seems to demonstrate a growing recognition of its value in some contexts, as noted in one 2010 article that found that by that year Wikipedia had been cited in over four hundred judicial opinions. See Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J. L. & Tech. 1, 1 (2009–2010) (reviewing several instances in which Wikipedia has been cited in judicial opinions and critiquing its usefulness, or lack thereof, in those contexts). Judge Posner argued in 2007 that "Wikipedia is a terrific resource...[p]artly because it [is] so convenient, it often has been updated recently and [it] is very accurate," after citing it in United States v. Radomski, 473 F.3d 728, 731 (7th Cir.2007). See Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. Times, Jan. 29, 2007 at C3. While a prudent person would avoid a surgeon who bases his or her understanding of complicated medical procedures on an online source whose contributors range from expert scholars to internet trolls, where an understanding of the vernacular or colloquial is key to the resolution of a case, Judge Posner is correct that Wikipedia is tough to beat. A fuller explanation of the propriety of citing Wikipedia is set forth in Judge Voros's separate opinion.

So, let's turn to Judge Voros' concurring opinion, in which he notes that "[b]ecause Wikipedia is an open-source project, questions arise as to its reliability" and that Wikipedia itself has the following disclaimer:

 

IMPORTANT NOTE: Most educators and professionals do not consider it appropriate to use tertiary sources such as encyclopedias as a sole source for any information—citing an encyclopedia as an important reference in footnotes or bibliographies may result in censure or a failing grade. Wikipedia articles should be used for background information, as a reference for correct terminology and search terms, and as a starting point for further research.
As with any community-built reference, there is a possibility for error in Wikipedia's content—please check your facts against multiple sources and read our disclaimers for more information.

 

Judge Voros then raises what I think is the most important criticism of citing Wikipedia, which is that

A defining feature of Wikipedia is that its entries are in a constant state of change. The impermanent nature of the information on Wikipedia has serious consequences when Wikipedia entries are cited in judicial opinions. Unless they are provided with a date-and time-specific citation, researchers who pull up a Wikipedia entry cited in a judicial opinion will never be absolutely certain they are viewing the entry as it existed when the judge viewed it....This may ultimately lead to uncertainty and instability in the law. Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J.L. & Tech. 1, 38–39 (2009–2010).

But the bottom line is that "[c]iting Wikipedia is as controversial as it is common. Some courts approve it, others condemn it." Judge Voros, however, really falls into neither camp. Instead, he ackowledges that citing Wikipedia would be inappropriate in many cases but then cites tha aforemention Peoples article for the proposition that "Wikipedia entries can be useful in some limited situations...for getting a sense of a term's common usage" and the then notes that

getting a sense of the common usage or ordinary and plain meaning of a contract term is precisely the purpose for which the lead opinion here cites Wikipedia. Our reliance on this source is therefore, in my judgment, appropriate.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/08/wikipedia-httpwwwutcourtsgovopinionsappopinfire_insurance081612pdf.html

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