Recently there has been an apparent outbreak of little monsters running rampant all over our neighbourhoods. Of course, you’ve probably not seen any of them if you have yet to download the augmented-reality game Pokémon GO.
Since the game’s release on July 6, 2016 in the USA and other countries, it has gained great popularity. As part of the game, players use their camera-phones and GPS to capture different Pokémon, i.e. little creatures, by walking around in the real-world. The success of the game has also generated discussion about accidents, personal safety and incidents of trespassing which have occurred while players search for Pokémons. Yet the question of liability is scarcely mentioned in dialogue.
This blog post aims to raise awareness about personal injury liability for Pokémon players, property owners and tenants, business owners, drivers and Niantic, the game’s developer and publisher. Both people who are actively playing these types of games and non-players who are going about their own business need to be aware of their potential for liability in the event of an accident. Some of the central questions discussed are: Who is liable when someone is hurt? What are some ways to limit liability? What are some ways to play safe?
Players: Is Catching Eevee or Dratini Worth the Risk of Injury?
As a Pokémon GO player, you must be aware that actions taken while attempting to catch different creatures can lead to real-world consequences in terms of potential liability and/or personal injury.
Above all else, pay special attention to your surroundings at all times. Ask yourself: Are you on public or private property? If you were not playing the game would you normally have reason to be in that space? What is your level of accountability if you are injured?
Property owners have the right to ask players to leave their property if they are trespassing – you should respect private property and any “Private Property: No Trespassing” signage. You may be subject to arrest and fines. Playing Pokémon GO is not a defence to trespass. Also remember, if you are injured while playing Pokémon GO, for example while trespassing or crossing streets illegally, any potential claim for damages will be reduced by your portion of fault for causing or contributing to the accident.
It’s always a good idea to adhere to some common-sense safety practices. Avoid desolate areas and be mindful of the time of day you’re playing. Criminals may take advantage of a player’s distracted state or their inadvertent wandering into a dark and poorly visible area. For instance, one young man was shot to death in what appeared to be a bungled phone robbery while playing the game.[1]
Have fun, but stay safe and be responsible and respectful of others and their property and personal safety.
Private Property and Homeowners: “Private Property: No Trespassing” Signage
As a property owner, you should be aware and understand that if someone is injured on your property, even if you did not invite them there, you can still be partially or fully liable for that injury, particularity if there is a hazard or unsafe condition on the property. Always ensure you have appropriate home insurance coverage.
If you do not want people on your property, post a “Private Property: No Trespassing” sign. It may be wise to post a sign indicating that playing Pokémon GO is prohibited on the premises as well. While this sign might not stop players from trespassing, it is a clear indication that they should not be there. Posting this type of signage on the premises may be a factor considered by a court when determining fault for an accident.
If you personally experience trespassers on your property, do not escalate the problem or put yourself in harm’s way.
Trespassers in Daylight:
- Tell them they are on private property and ask them to leave.
- If they don’t leave and you feel threatened or otherwise at risk, you should call the police.
Trespassers at Night:
- Remember, there is no indication that the trespassers are Pokémon GO players. You could in-fact be encountering a burglary or other criminal activity. Exercise caution as you would otherwise.
- Do not approach them; it may be best to call the police for assistance in these circumstances.
Business Property Owners: Opportunity or Hazard?
The popularity of this game does have some positive implications for business or commercial property owners and their tenants. Added pedestrian traffic in an area where Pokémon are plentiful or where an especially rare creature has been spotted could result in extra sales and revenue. To this end, various brands have begun to use the game as an opportunity to encourage sales when featured as ‘Poke Stops’[2]. But what happens if someone gets hurt?
Like homeowners, business property owners may be liable if someone is injured on their property/premises, even while trespassing, particularly if your property has hazardous or unsafe conditions.
Remember, you have a right to post signage indicating that playing Pokémon GO on the property/premises is prohibited. Posting a sign does not bar players from the property, but could limit liability when a court is determining fault for an accident.
As a business owner, you may ask individuals playing Pokémon GO to leave the premises. Nevertheless, as an owner it is best to ensure that you and any tenants have appropriate insurance coverage to cover potential claims you do encounter.
Drivers: Watch for Distracted Pedestrians and #DontCatchAndDrive
Many drivers have probably witnessed pedestrians putting themselves in danger while texting or reading text on their smartphones, and with the success of Pokémon GO there are likely to be even more eyes glued to these small screens.
In pedestrian/motor vehicle accidents, there is an automatic assumption in law that the driver is responsible. However, the pedestrian may be found either partially or fully at fault for the accident depending on the circumstances of the case. To avoid liability, the driver must prove that s/he did nothing wrong to cause the accident. Drivers must be alert to the possibility that Pokémon GO players may be distracted and suddenly walk into the path of their vehicle. They must pay close attention to pedestrian traffic.
In Toronto, city council recently voted against a by-law that would prohibit texting and walking. However, it remains to be seen whether incidents arising from distracted Pokémon GO players will help to get the by-law passed in the future.
In Ontario, distracted driving has been deemed a huge problem requiring distracted driving laws that include prohibiting the use of hand-held devices. Whether texting or catching Pokémons while driving, this type of distraction is dangerous to yourself and those around you and could result in serious injuries and death, not to mention hefty fines or charges. Drivers should never play Pokémon GO while driving and should refrain from using their vehicles to drive others on the prowl.
What is Niantic’s role in this?
Finally, Niantic, the developer/publisher of Pokémon GO, requires all players to agree to their terms of use before being allowed to play. These terms of use contain a disclaimer which waives the liability of Niantic in the event of an accident, injury, or damage. Moreover, a binding arbitration clause in the disclaimer (with only a 30-day opt out after a player agrees to terms of use) aims to prevent players from bringing a lawsuit in court against the developer/publisher. Just how enforceable these terms will be, particularly for people under 18 years of age, will not be known until they are challenged in court at some point in the future.
For more information or if you have questions, please contact Renée Vinett at rvinett@hshlawyers.com or 416-361-7560.
[1] http://www.dailymail.co.uk/news/article-3699722/Pokemon-sees-death-Teenager-18-killed-cousin-injured-playing-game-Guatamala.html
[2] http://www.prweek.com/article/1401934/brands-using-pokemon-go-craze-catch-em-all
