<i>Pok'mon Go</i> Raises a Variety of Liability Issues

Pok'-court

Only a few days after its release on July 6, 2016, the new enhanced reality game already had a Pok'stop in court, courtesy of a New Jersey man who filed a class-action nuisance and unjust enrichment class action suit against the developer and distributor of Pok'mon Go after at least five players knocked on this man's door requesting access to his backyard to catch a Pok'mon that had been virtually placed there. Marder v. Niantic Inc., 4:16-cv-04300 (N.D. Calif.) Then a class action suit was filed on August 10 in federal court in California by a Michigan couple living in a lakeside neighborhood, alleging that they are now unsafe due to hundreds of Pok'mon-seeking people who have turned their park into a nuisance. Dodich v. Niantic Inc., 3:16-cv-04556 (N.D. Calif.).

Dangerous Premises

A further question that personal injury attorneys will certainly raise is liability when minors are injured after being lured to dangerous premises. Although, in general, the attractive-nuisance doctrine is not applicable in New York, for example, the law protects children by imposing upon an owner or occupier of a land a higher duty of care when it is foreseeable that minors will enter the property. See, 85 N.Y. Jur. 2d Premises Liability '23 (2016). The degree of foreseeability of minors entering private property in pursuit of Pok'mons will be a fact-specific question, depending, among other things, on the popularity of the game in the specific neighborhood. Furthermore, it can be argued that the high popularity of Pok'mon Go imposes a duty upon a landowner, or its occupier, to give notice to the game distributor and producer of any unsafe premises, so that no special attraction is created.

To be sure, trying to catch all of the Pok'mon characters while walking can be distracting. This raises to a new level the previously recognized problem of people walking while texting (see, Lang, “Don't Text, Talk and Walk: The Emerging Smartphone Defense and Personal Injury Litigation,” 77 Alb. L. Rev. 425 (2014)), because it is evident and obvious that people playing Pok'mon Go can be distracted while doing so and as a result suffer serious personal injuries. Whereas the creatures in Pok'mon Go are imaginary, the personal injuries resulting from playing the game are real. For example, the Auburn Police Department in New York issued an advisory reminding Pok'mon players not to use the application while driving a motor vehicle or riding a bicycle, after a 28-year-old driver, distracted while playing the game, veered off the road and crashed into a tree.

Jurisdictional Issues

Nor is the problem limited to the United States. Players in Bosnia have been warned, while roaming into areas looking to capture monsters on their Smartphones, that they should avoid mined areas because of unexploded land mines left over from the 1992-1995 war. The Israeli military has banned its soldiers and officers from playing the game on Israeli military bases due to security concerns, fearing that the game would activate cell phone cameras and location services that could leak sensitive information, such as army base locations and photographs of the bases, to users.

Although the producers of Pok'mon Go are not present in the place where a Pok'mon is virtually placed, the law recognizes that a defendant can act in concert with a co-defendant without being present at the place and time of the tortious act. See, Restatement (Second) of Torts '876 (1979).

In Kubert v. Best, 432 N.J. Super. 495 (N.J. Super. 2013), a New Jersey court utilized this concept to find liable a person who sent text messages to another person, while knowing that the message recipient was driving a vehicle, and that driver was involved in an accident injuring the plaintiffs. The New Jersey court reasoned that although the text message sender was not present in the vehicle when the accident occurred, she was “electronically present” aiding and abetting the driver's unlawful use of his cell phone while driving. It can be similarly argued that when Pok'mon Go incites a player to catch a Pok'mon in private property, it acts in concert and aids and abets the player to trespass into the private property, thereby committing electronic trespass.

The Restatement (Second) of Torts '303 (1979) takes this concept even further stating that “[a]n act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.” It can certainly be argued that when Pok'mon Go virtually places a Pok'mon in dangerous premises, it should realize that the conduct of the player will be affected in a way that could create an unreasonable risk of harm, inasmuch as the player will attempt to come close enough to the Pok'mon to be able to catch it. This is especially true if a premise owner gives Pok'mon Go specific notice of the danger.

Conclusion

Courts will be tempted to force the development of enhanced-reality technology into a responsible path that protects the rights of our society. To do so, courts will place certain liabilities on the developers for wrongdoings that result from the use of their technology. However, courts should not bind innovation with burdens that will ultimately impede the advancement of this world-changing technology. Perhaps it would therefore be prudent for courts to wait and see before making consequential decisions.

As a practical matter, practitioners should be aware of the different, still unanswered, legal questions raised by enhanced reality and its different applications. Perhaps it would be cautious to advise landowners to put Niantic on notice of any dangerous premises and to request that they refrain from creating any attraction to their property. What if Pok'stop is at the home of a known sexual offender? Or a location is dangerous for other reasons? For example, this summer a 15-year-old high school student was struck by a car in Pennsylvania after the Pok'mon game caused her to cross a major highway at 5 p.m. in the evening, during rush hour. There is even the possibility of mischief (Pok'mischief?) of Pok'mon creatures being purposely positioned at political rallies to swell the number of people apparently attending, thereby artificially boosting attendance at rallies of candidates who want to show a greater number of people present.

While these different issues are considered by the courts, it would be prudent to inquire from personal injury plaintiffs whether their behavior was affected or distracted by any means of enhanced reality. It would be similarly frugal to question a defendant in a premises liability matter about their knowledge of Pok'mon Go, and whether they were on notice of players entering their property while immersed in a parallel reality.

Robert D. Lang is a partner in the New York City-based D'Amato & Lynch. He can be reached at [email protected].