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Can “Pokémon GO” get sued for accidents, robberies and trespassing incidents?

Category: Corporate Law, Lawsuits

The augmented reality game, Pokémon Go, has become a worldwide phenomenon capturing the imagination of young people. However, ‘Pokemania’ has created all kinds of trouble for users and property owners from accidents and robberies to trespassing– and “Pokémon GO” makers could get sued for triggering the incidents.

“Pokémon GO” pocketed a quick $7.5 billion just 48 hours after the app’s global launch. The app has made Nintendo relevant again and has boosted Nintendo’s market value. “Pokémon GO” has catapulted to popularity in record time with more users than the Tinder dating app and falling just short of Twitter’s user numbers.

However, in the midst of the “Pokémon GO” craze, a growing number of users are reporting accidents and incidents occurring because of the game.

One teen walked onto a highway while playing the game and was hit by a car. Armed robbers used the app’s geo-location feature to lure victims to a secluded area for easy mugging in Missouri. Posts are popping up left and right about sprained ankles, bruises, falls, trespassing and more, as “Pokémon GO” users walk or run from one location to the next – eyes glued to their mobile devices, oblivious to their surroundings.

 

Is Nintendo’s “Pokémon GO” in the line of fire? Will they catch a lawsuit as fast as their users are catching Pokémon?

Can “Pokémon GO” be sued for accidents that occurred while playing the game?

According to Autumn Deiseroth, the 15-year-old girl who got hit by a car playing the game, “Pokémon GO” ‘forced her to cross a four-lane highway’ to catch the critters.

“Kids don’t just cross the highway for no reason,” her mom Tracy Nolan shared with reporters, adding that her daughter rarely goes outside.

Are these grounds for suing Nintendo or the game developer, Niantic? What about drivers who are distracted playing the game while behind the wheel? Police are already investigating crashes where drivers allegedly played “Pokémon GO” while driving. Who is at fault? The Driver? Nintendo? The game?

In this case, the girl said she was not playing the game while crossing the street. The game does not force people to move in certain directions. Due to the fact that Autumn crossed the street on her own free will, despite the presence of a well-marked cross walk, she does not have a very strong case, if any at all.

Distracted drivers playing “Pokémon GO” will likely be unable to sue Nintendo or Niantic for their misfortune either as many states require drivers to use hands free devices while driving.

 

Can “Pokémon GO” be sued for ‘attracting nuisance’ to private properties?

While oblivion may cause accidents, and armed robbers may be beating the system, the game itself may lead users to wander onto private property. What if users get hurt or killed by fearful property owners who believe their property and/or person is at risk?

Boon Sheridan’s home was once a church. On July 9, he tweeted, “Living in an old church means many things. Today it means my house is a “Pokémon GO” gym. This should be fascinating.” {A gym is where Pokémon trainers go to train their Pokémon, and an important target used to advance quickly in the game}.

He replied to his own Tweet hours later, stating “I’ve officially stopped counting after easily 30+ people walking up and as many cars pulling up for a few minutes.”

While Sheridan was aware that his home was a “Pokémon GO” gym, many private property owners have no clue. Police are receiving calls from homeowners about possible burglars and strangers lurking around the neighborhood.

“Pokémon GO” players are being warned not to trespass on private property as homeowners have the right to self-defense if they have reasonable fear of imminent peril or bodily harm. In most states, “stand your ground” laws will protect the homeowner in a court battle.

Niantic has put a disclaimer on the Pokémon app to protect itself from potential lawsuits. The disclaimer states that players must agree to the fine print and cannot enter private property without permission. It also states Niantic is not liable for any property damage, injuries or deaths that result while playing.

Creators of the virtual-reality game are allowed to place in-game targets wherever they want.

The only gray area is the notion of “attractive nuisance”. – is “Pokémon GO” creating an “attractive nuisance” by planting Pokémon characters, on purpose or by accident, on private property, causing players to be injured in their activities? The attractive nuisance doctrine holds property owners responsible for injuries to children tempted by the presence of some object that is attractive to them. In this case, Pokémon Go is not the property owner. See Edwards v. Maule Industries, Inc., 147 So.2d 5 (Fla. 3d DCA 1962) (To constitute attractivenuisance, condition maintained by defendant property owner must be attractive to children and must be inherently dangerous and constitute a trap). However, this may open up a whole new can of worms!

If this can be upheld, users may have a claim against Niantic. However, the odds are slim considering the user agreement does not hold the game creator responsible for injury, death and other issues the game may pose and the attractive nuisance is not caused by the land owner.

To all “Pokémon GO” users: Be aware of your surroundings. Do not be oblivious. Do not trespass on private property. Do not enter secluded areas. This app may be fun, but it’s just a game.

 

Your safety should hold higher importance than catching Pikachu.

*Disclaimer – This is in no way to be considered legal advice. An attorney client relationship does not exist from your reading of this blog or your following any of the suggested courses of action above.