August 2016

The Mounting Hazards of Pokémon Go

By Frederick Schenk

Casey Gerry Schenk Francavilla Blatt & Penfield LLP

Crazy, right? People falling off cliffs, getting trapped in caves, chasing around the Holocaust Museum, even getting in car crashes — all for the want of a Pokémon character. While new trainers hunt for Pokémon to evolve them into stronger monsters, new lawyers should watch out for “evolving” legal issues in this new legal world of augmented reality games.

The new location-based mobile app, in which players try to catch exotic monsters from the Japanese media franchise, has grabbed plenty of headlines lately. In addition to chasing the digital creatures, whose locations change, there are also dedicated Poké Stops, which are areas where trainers can gather items needed in their quest to “catch ‘em all.” The hunt for Pokémon and items have led to unique situations.  People have reported finding dead bodies, having their phones stolen — and according to NBC News, even getting locked in a cemetery after closing — just trying to capture that elusive Charizard (for the novices, a cross between a dinosaur and a dragon) in a Poké Ball.  Even some criminals set up lures at Poké Stops, which lure Pokémon to that stop, in the hopes of luring players to secluded areas at night while trying to catch unaware victims.

If that’s not enough to convince you that perhaps this craze has made people go both literally and figuratively over the edge, at least one health services company has already posted advice to medical professionals on how to enter diagnostic codes for injuries sustained while playing the new GPS-based game on their smart phones. For example, Athenahealth suggests — only partially in jest — that one may use the code for “Fall due to bumping against object,” noting, “That stop sign should have gotten out of YOUR way.” Or there’s one for an injury “in non-collision transport accident in non-traffic accident” for that “person who just walked into a parked car.” Even dehydration could be covered, “Keep chugging those fluids or find yourself a Squirtle.” You may find a Pokémon based diagnostic code in a personal injury or negligence case.

While their tone is humorous, the consequences are anything but and should serve as a warning to Pokémon players, friends of players, and parents of players that caution should be taken at all times while on the search for that elusive Beedrill or Dratini. Even the company issues a warning when you first open up the game urging that you should always be aware of where you are and where you’re going. There is even a disclaimer in the game’s terms of use agreement that players should maintain appropriate insurance.

While the game has been praised for getting people, particularly younger individuals, off the couch and into the outdoors, it has been known to lead people to unfamiliar, even dangerous, places. So in the name of safety, some common sense pointers seem appropriate:

  • Go out with a buddy. There is safety in numbers, even if it is the competition.
  • Tell someone else where you’re going, just in case you get lost and lose power on your phone or, worse yet, lose your phone.
  • Take your eyes off your phone. It may seem basic to remember to look up from that phone while walking, but then how can you keep an eye on the Mankey? It won’t matter if you trip and fall off a curb or into the lake, so just look up. (Remember that billing code for crashing into an immovable object?)
  • Driving or riding a bike? Just don’t do it and play the game at the same time. It’s just one more type of distracted driving that can end up with your car into a tree, or worse, into another gamer or vehicle. (Oh, and you could get an expensive ticket, too!)
  • Trespassing is against the law and might land you in trouble. Of course, seeing signs goes hand-in-hand with looking up from the screen occasionally. A good rule of thumb, whether or not there’s a “No Trespassing” or “Do Not Enter” sign, is to respect others’ property both public and private.

Parents, in particular, should pay attention to their children’s participation in the game. Make sure all children know that the common safety rules of everyday life apply when playing Pokémon. Make sure your kids (teenagers, too) tell you where they’re going, play with a buddy, don’t talk to strangers, know when to say “no,” and remind them to tell an adult if something untoward happens.

Privacy concerns are also implicated with the game. While The Pokémon Company, Nintendo and Niantic, which is behind the game, all have issued assurances that data is protected and early bugs patched, downloading the app does give them access to some of your data. Still, because it uses GPS and a data connection, you can be tracked, according to thehackernews.com. Security is a concern to the point that the Defense Department has reportedly issued guidelines to federal workers who might use the game. The purported memo contains many of the same cautionary words outlined here, and includes language about not inadvertently sharing locations that were meant to be kept secret. Knowing that, safety basics apply, whether you work for the government or are a parent whose kids are taken with Pokémon Go.

Pokémon Go may also test the current nuisance laws throughout the United States. While its developers have made efforts to prevent private homes from being Poké Stops, the game still creates large gatherings at what used to be peaceful properties. It remains to be tested whether such assemblies in pursuit of digital creatures actually creates a public or private nuisance, and, if so, who may be held liable for that nuisance.

Landowners might also have reason to be wary. If a landowner knows that there are many trainers coming onto a property, but fails to warn of known dangers on that property, an injured trainer might find an attorney willing to test the limits of a property owners’ duties to third parties. While a Pokémon player may not be an invitee, the laws and some states might allow trainers to be considered licensees. It may take time for the case law to develop, but it does not hurt to consider the consequences today.

The bottom line? When playing Pokémon Go, be extra alert (especially at night); remain in well-lit places; know your surroundings; don’t play alone; don’t bike/drive or skateboard and play; and make sure someone knows your itinerary. An entrepreneurial trainer might catch ‘em all, but an entrepreneurial lawyer may find a way to forge new law.

Now, go catch a Charizard!

This article is intended for informational purposes only and does not constitute legal advice. The information contained in this article is specific to California law, and should not be relied upon in other states.