McCague Borlack LLPLitigation Boutique, GLOBAL Litigation Law Firm

 

 

 

Articles and Publications

July 2016

Pokémon Go:

Augmented Reality is the New Reality for Liability Insurers

Michael Blinick
Michael Blinick,
Partner

Michelle Legault
Michelle Legault,
Student-At-Law

By Michael Blinick and Michelle Legault

Pokémon Go, a new app for Android and iOS users, has captured the attention of smartphone users worldwide since its release on July 6, 2016.1 The app uses the digital camera and GPS technologies in smartphones to create an augmented reality in which users can capture, train, and battle their Pokémon in real life settings.2 Although a fun and perhaps nostalgic activity for some, Pokémon Go will soon become a real concern for liability insurers.

To date, numerous reports have surfaced of game-related slip or trip and fall incidents. There have been reports of people falling onto sidewalks, tripping over doorstops, and falling into holes because they were trying to capture Pokémon and not paying attention to their surroundings.3 Their injuries range from minor cuts and bruises to ankle twists and fractures.4 While stories of a motor vehicle accident caused by the game were found to be false,5 claims of pedestrian hits and other motor vehicle accidents are conceivable and likely. Users of the game have reported that Pokémon will appear on the dashboards of vehicles, such that drivers are enticed to focus on capturing the digital monsters instead of paying attention to road conditions.6 Several users have already posted online photos of themselves playing Pokémon Go while driving.7

Niantic Inc., the San Francisco-based company behind the game, has issued a statement with The Pokémon Company International encouraging users to be safe and alert at all times.8 However, this warning might not suffice in the face of motor vehicle and slip or trip and fall incidents that arise during use of the game. An injured individual could potentially sue Niantic Inc. as the developer of the game for causing their damages in these types of cases.

Other types of cases where liability might arise include trespassing and assault. Since Pokémon Go launched last week, there have been reports by home and business owners of users trespassing on their properties to capture rare Pokémon.9 There have even been reports of a robbery and a stabbing facilitated by Pokémon Go. In Wyoming, a group of teenagers used the app to lure users to a location and rob them at gunpoint.10 In Oregon, a user was stabbed after attempting to engage a bystander in a Pokémon battle.11 These are just some of the tortious incidents that have and could easily arise in the future.

...a user was stabbed after attempting to engage a bystander in a Pokémon battle.

To a much lesser extent, users have also complained of sore legs from walking around to find Pokémon.12 The message here is that although people are increasing their risk of injury by engaging in distracted gaming practices, many are getting good exercise out of the process.

Currently, the app is available in the United States, Australia, New Zealand, and Japan.13 Although not released in Canada, many users have found unofficial networks through which to download the app.14 As reports of incidents continue to surface and the app becomes available in more countries, both insurers and lawyers would be well-served to investigate the potential for liability against users and developers of augmented reality games such as Pokémon Go.

 


1Jonathan Ore, “Pokémon Go brings augmented reality to the mainstream” (12 July 2016), CBC News, online.
2 Ibid
3 Associated Press, "Playing Pokémon Go is becoming dangerous" (9 July 2016), New York Post, online.
4 Ibid

5 Craig Silverman, “That Story about Pokémon Go Causing a Major Highway Accident Is a Hoax” (11 July 2016), Buzzfeed News, online.
6 Supra note 3
7 Ibid
8 Al Jones, “Police: Popular ‘Pokémon Go’ Poses Numerous Risks to Players Including Robberies, Accidents” (11 July 2016), CBS News New York, online.

9 Jessica Chia, “Virginia police see a rise in trespassing and suspicious activity after Pokémon Go is released” (11 July 2016), Daily Mail, online.
10 Alan Yuhas, “Pokémon Go: armed robbers use mobile game to lure players into trap” (11 July 2016), The Guardian, online.
11 Mega Sugianto, “Forest Grove man stabbed while playing Pokémon Go: ‘I basically risked my life’” (12 July 2016), Fox 12 News Oregon, online.
12 Robert Ferris, “Pokémon Go’s unintended consequences” (11 July 2016), CNBC, online.
13 Supra note 1
14 Ibid


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