The members of the All Things Legal crew have long taken an interest in how the development and popularization of new technologies collides with a legal framework that is not entirely prepared for the novel issues that arise. So it should come as no surprise that on a recent episode of All Things Legal, Craig Ashton and Tim Hodson discussed a popular new mobile game that’s presenting challenging legal questions.
Craig: “It’s amazing. Technology has taken us… every time they do something with drones, with driverless vehicles… there’s always a foundation legal issue [accompanying it]: assumption of the risk, the law of negligence, trespass, all these things apply.”
Millions of people chasing virtual monsters are creating very real problems.
“So we got Pokemon Go. And this is Pokemon Company working with a group called Niantic. They have an app that makes little monsters appear on your smartphone screen through the camera as you walk through your neighborhood making it seem as if they’re right in front of you. And it also quickly led to an unexpected side effect: a number of reported Pokemon-related injuries. Quote, ‘Pokemon Go put me in the ER last night. Not even 30 minutes after the release last night, I slipped and fell down a ditch.’”
After Craig cackled a bit and Tim Hodson shook his head, Craig continued with the story. “There’s a medical school in Arizona that put out an email [saying], ‘Please approach [Pokemon] with caution and remember to look up from your phone to avoid tripping or running into something.’”
While these accidents might provide fodder for unusual slip and fall lawsuits against property owners, the game is also raising the question of whether the game developers themselves might be to blame.
Are the creators of Pokemon Go to blame? Probably not.
During the discussion, Craig showed that the developers of the popular game did anticipate some of the problems that might arise due to the game: “The Pokemon app does have a warning on the loading screen asking players to pay attention to their surroundings. [But] people get so excited though that they don’t heed it, and ultimately they’re ending up in ditches, running into things…”
Obviously, people who end up injuring themselves while playing the game might start entertaining the idea of calling up their favorite lawyer, but Craig quickly squashed this idea: “Basically, the warning I think is enough. There’s assumption of the risk… You don’t have to tell somebody, ‘Look up when you’re walking in traffic.’ I mean, we all live in an urban society… We know there’s curbs, we know there’s traffic, we know there’s bikes, pedestrians, etc. So if you’re walking around downtown, it’s on you if you’re looking at your phone, trying to find an imaginary character to capture, that you don’t walk in front of a bus.”
Tim was quick to agree, with a bit of remembered fatherly advice: “Yes. ‘Stupid human test,’ as my dad would say.”
However, after a moment’s contemplation, Craig did partially check his opinion: “But, the bus driver’s still got to pay attention too. So, depending on how many people are using the Pokemon Go [app], it would be kind of like being in a school zone. I mean, if you see children around, even though the speed limit’s maybe 35, even though it’s not a school time… you’re probably, from a reasonable person’s perspective, required under the law of negligence, to slow down based upon the fact that we all know and understand that kids can be unpredictable.”
Tim Hodson stepped in and pointed out that many adults are playing the game as well, and getting themselves into legal—and physical—trouble by playing the game while driving, or by stepping into traffic.
A Rancho Cordova neighborhood recently made TV news, thanks to the fact that the area is a hotbed for a particularly rare Pokemon, drawing thousands of visitors to the normally quiet community. The players are creating hazardous conditions, as many of them are playing while driving, creating the potential for car accidents and pedestrian collisions.
Residents aren’t amused. As one annoyed resident told the TV news crew, “I need a Pokemon-be-gone thing.”
However, the game’s players aren’t just being reckless.
Chris then shifted gears a bit, and pointed out another issue that has been inspired by Pokemon Go. “And one of the things that this is leading to… not only injury, where there’s assumption of the risk, reasonable care, law of negligence would apply… but also trespass. Where the Pokemon is on somebody else’s property, and [game players] are walking on there. So you’re gonna have some issues pertaining to maybe, liability on [the game’s developers], because you’re aiding and abetting potential criminal activity… criminal trespass.”
Tim pointed out that in one of Niantic’s other real-world games, Ingress, they have stressed that players need to prioritize real world rules over in-game concerns. On Ingress’s Community Guidelines page, they state:
“Don’t trespass while playing Ingress (and don’t try to lawyer that guideline, just respect it). Do not access any property or location while playing the game if you’re not sure you have the right to be there. Use good judgement and take responsibility for your actions.”
It’s easy for Pokemon Go players to stay out of trouble.
Despite all of the negative press currently in the media about the new game, the solutions are really quite simple. Pokemon Go players can avoid the risk of legal and/or health issues by following these three rules:
- Stay aware of your surroundings while playing the game.
- Don’t play while driving. In California, the ticket for a first time offense typically costs more than $160. If you cause an accident, the repercussions are much more severe.
- Respect private property. Stay out of homeowner’s yards and driveways. Don’t venture onto the premises of private businesses, unless you have permission. Don’t go into public parks after dark.
As long as you’re conscientious and respectful while playing Pokemon Go, you’ll likely avoid running into any serious issues. Make sure that your enjoyment of the game—and the fringe benefits of getting outside and exercising—doesn’t impact the happiness and wellbeing of others.