Poking Around Legal Issues Associated With Pokémon Go

As excited game enthusiasts embraced the Pokémon Go app release recently, several hazards associated with playing the virtual game in the real world have surfaced.

According to the Apple iTunes description, Pokémon Go, created by Niantic, Inc., allows users the ability to catch game characters in the real world. When the free app is downloaded, a player can walk around outside and his or her smart phone will vibrate when a Pokémon character is nearby. The interactive game positions certain characters near native environments. In addition, players can stock up on Poké balls (used to throw at the characters) at locations of public interest, like museums.

Erie Insurance published a blog on the hazards associated with being distracted by Pokémon Go last week. The insurer described the game as a digital scavenger hunt. The problem, according to Erie, is that a bunch of distracted people walking around isn’t safe.

Some players have reportedly walked, biked or skated into signposts and sewer grates, according to the Insurance Information Institute. Several state transportation departments issued warnings against playing the game while driving.

According to Maria Quintero, a San Francisco-based law partner at Hinshaw & Culbertson, there are a variety of exposures associated with the game. The most obvious is likely the one getting the most media attention – personal injury. People may bump into each other as they play and could even cause car crashes if they aren’t paying attention when crossing a road, for example. Depending on the jurisdiction, a person who trespasses and is injured on private property can still sue for liability if a condition of the property is deemed unreasonable or unsafe.

During claims investigations, Quintero said adjusters will need to determine the facts and circumstances of the loss in order to evaluate subrogation rights and whether there is any indication of comparative negligence.

Besides injury, there is the possibility of property damage as a result of a player trespassing on private property. Property damage could also occur as a result of crash caused by a distracted player, said Quintero.

“We think it’s great that people are getting outside and enjoying Pokémon Go,” said Loretta Worters, vice president with the I.I.I. “But it’s important to be aware of your surroundings and be sure you’re adequately protected against risk.”

A University of Georgia assistant professor also pointed to recent crimes against players. The app has been used by criminals to rob players who ventured into remote areas.

“This may be a fun game, but remember that you’re still in the physical world, with physical objects. Be mindful of your surroundings and no matter how enticing the ‘catch’ is, don’t enter areas that seem unsafe. It’s not worth it,” said Sun Joo (Grace) Ahn, assistant professor at the University of Georgia. Ahn specializes in research examining how social media, video/internet games and immersive virtual environments influence user attitude and behavior.

Another university expert explained that it was a new phenomenon.

“It is a daring and potentially transformative social media experiment. It really is more than a game,” said Kyle Johnsen, associate professor of engineering at the University of Georgia.

The virtual reality and multimodal 3-D user interface expert said the game could impact businesses too.

“There are some elements of the game that will create some policy issues because it encourages people to go into places to look for Pokémon and in some cases this borders on trespassing, Johnsen said. “What’s the company’s responsibility for protecting these areas? Also, who is allowed to plant Pokémon within your space?”

Although the manufacturer has app users acknowledge a liability disclaimer, Quintero said it might not apply in certain situations. For example, if a player causes a car crash either by distracted walking or driving, the disclaimer may not extend to an injured third party. Taken a step further, if the manufacturer is brought in to a suit, does it then file a cross complaint against the user, Quintero asked.

She also noted that in some recent media reports, groups of players were congregating in certain places which could raise nuisance claims. Another possible claim might relate to a violation of privacy. She explained that in order to play the game with a smartphone, the camera and GPS must be turned on. Recording images, even in a public place, could be considered an invasion of privacy.

Quintero shared a recent report where the Holocaust Museum in Washington D.C. expressed their dismay with the throngs of Pokémon players congregating at the museum. She said the game could create a tipping point where the government intervenes to regulate where and how people can congregate at government venues and monuments.

“Can a government regulate…time, place, manner of how people gather,” Quintero asked. “Is that a first amendment violation if they do try to do it?”