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Pokémon Oh No! Augmented reality raises specter of personal injury claims

Article was originally published on GeekWire on August 6, 2016

There’s no denying it—Pokémon have taken over the country and, as of the popular app’s launch in more than 30 countries over the past few weeks, the world. As the media is eager to point out, the game’s launch has not been without certain glitches (i.e. server errors), publicity mishaps (Poké Stops on graves and in Holocaust museums), and security concerns (apparently Niantic Inc., developer and publisher of Pokémon Go, had full access to users’ Google accounts). But perhaps the most frequently discussed incidents are the minor, and sometimes major, physical injuries occurring as players hunt high and low in the hope of catching ‘em all.

It should be no time at all before we see our first Pokémon Go-related lawsuit. To date, major injuries have occurred in California, New York , and Pennsylvania. All involve players who were clearly not paying attention to their surroundings while playing the game. Many litigators believe it is a matter of “when” not “if” companies developing augmented reality applications begin facing personal injury lawsuits.

The game uses two mechanisms to limit its liability. The first is familiar to every player—a warning screen at the opening of the app.

In the most recent update to the app, a variety of pop-up warnings were also added, and players must click “OK” before the game will open.  Warnings like these are common in places like ice rinks, gyms, rock climbing studios, and other locations where people engage in activities that could cause injury. Many states will only require a product to have a warning if danger is reasonably foreseeable.  For a game that compels users to keep their eyes on a screen (and remember that the augmented reality that allows users to see the world around them is only triggered when battling a Pokémon), the possibility for injury is reasonably foreseeable.

Assumption of risk is a likely defense the creators of Pokémon Go would use against a claim that the game developer failed to warn of the dangers of the game. In order to successfully defend using an assumption of risk argument, the developers must show that the injured player either knew, or should have known, about the danger posed by use of the game, but nevertheless proceeded to use it.

However, the assumption of risk defense may also not fully protect Niantic from liability. Assumption of risk is only a partial defense in states like California, Florida, and Washington, where comparative fault principles are applied to strict tort liability claims. Additionally, states differ in terms of the level of “understanding” a player must possess. California, New York, and Pennsylvania only require the player to understand that danger is generally possible while playing the game: a player’s understanding that he or she may be hurt while playing the game would be sufficient to defend Niantic from a lawsuit. Other states like Colorado, Connecticut, Indiana, Missouri, and Nevada require the injured player to know the exact nature and extent of the danger posed by the game. Niantic would have to prove that the player was aware of the likelihood of the specific type of injury that actually occurred (e.g. walking off of a cliff) to successfully defend itself using the assumption of risk argument.

The second limitation on Niantic’s liability is a more complete set of Terms and Conditions (T&C’s) that most players only swipe through in a rush to gain access to the game. But even the T&C’s do not fully limit Niantic’s liability. The T&Cs include an entire section on “Safe Play.”  The key provision reads:

You agree that your use of the App and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services.

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To the extent permitted by applicable law, Niantic, The Pokémon Company (“TPC”), and TPCI disclaim all liability related to any property damage, personal injury, or death that may occur during your use of our Services, including any claims based on the violation of any applicable law, rule, or regulation or your alleged negligence or other tort liability.

These terms are more expansive than the warning at the opening of the game, and may be enforceable in many jurisdictions. Enforceability will turn on whether the purchaser had reasonable notice and manifested assent to the agreement. A reasonably prudent user must be put on inquiry notice of the terms of the contract. Thus, since Pokémon Go purchasers were given the opportunity to read the terms and conditions and affirmatively accept them, they may be enforceable in many states. 

Liability could also expand beyond the typical trip-and-fall to more criminal scenarios.  For example, the first weekend after the app’s launch, a group of teens in Missouri used the game to lure unsuspecting robbery victims into a trap.

In addition to potential criminal scenarios, the game may result in liability for luring players into other precarious scenarios. Players may choose to enter dangerous situations (e.g. unsafe hiking trails, icy pathways, cliff edges) because the game has created a reason to do so. This issue is already occurring with people trespassing on private property.  The nuisance alone is worrisome enough, but some states grant homeowners the right to kill trespassers under the right conditions. With rare Pokémon and Poké Stops appearing on public property, the likelihood of a Poké-related intruder is not beyond the realm of possibility. If players are injured while pursuing goals created by the game, the liability may fall on the creators’ shoulders should they be injured (or killed) while doing what the game seemingly grants them permission to do.  It could even be argued that the game itself lulls players into a false sense of security. After all, if Niantic placed a Poké Stop in a condemned building, one would assume it must be safe enough for a hopeful young Pokémon trainer to enter for just a few minutes. 

Finally, there is a potential for more large-scale, class action suits.  Even the game’s trailer promises the hope of mass hysteria as a rare Pokémon spawns in a large public location. In the trailer, a MewTwo appears in Times Square and thousands flood the area to launch their Pokémon into the sky for an epic battle that could end in the acquisition of one of the rarest Pokémon in the game’s universe. This is not an unlikely scenario. Players have already gathered en masse at popular public places like the Santa Monica Pier in Southern California and Central Park in New York. Viral videos depict hundreds of players racing across these large spaces to collect rare Pokémon, just like in the game. Savvy players have reviewed the app’s code and discovered that none other than Mew, the strongest Pokémon in the original games, has already been programmed in—but no information about where or how it will appear is yet available. 

Inciting a public riot of sorts could lead to a negligence claim, since it could be reasonably expected that the appearance of a rare Pokémon would cause a stampede.  Perhaps Pokémon Go will program some safety features into the game, like a warning that running is not permitted or even causing the app to freeze if players shake the phone too much or move too quickly. 

It is only a matter of time before an injured person thinks his or her claim is so strong that a lawsuit should be filed.  Once a case reaches the hands of the court, the game’s warnings will truly be put to the test.  Who knows? Pokémon Go may be setting the standard for warnings in the augmented reality world.

This article is not offered as, and should not be relied on as, legal advice. You should consult an attorney for advice in specific situations.