Pokémon GO is the new phenomenon sweeping across the globe that some people are already sick of due to the relentless media, and others are scratching their heads and asking ‘what it is?’ If you are not familiar with the game, you should be. It is only the beginning of a new kind of virtual reality cell phone game – the next level of the mass gaming addiction. You are probably noticing an increasing number of pedestrians walking around staring at their phones (more than usual that is). If you are familiar with the game, then you know how addicting it can be to fill your Pokédex. So addicting, in fact, that personal injuries associated with the game have been making the news every day for a month now.
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. There are a lot of questions to be asked. Can property or business owners be held liable for players? Will players be held accountable? Can Niantec, the creator, be liable? How effective is the Disclaimer?
Property owners and businesses have an obligation to keep people (even trespassers!) reasonably safe while on their premises. That is unchanged regardless of the game. The issue this game creates is that more people may be entering one’s premises where few or none would have entered before. Property and business owners can put up a sign such as, “Private Property: No Trespassing” or something more specific to Pokémon GO. Once on their properties, business and home owners can also ask players to leave the premises. Pokémon GO players who trespass or break the law may be subject to arrest and fines.
Of course players need to pay attention. The game loads with a warning to “be aware of your surroundings”. At the time of publishing, new warnings were added including, “Do not trespass while playing Pokémon GO,” “Do not enter dangerous areas while playing Pokémon GO,” and, “Do not play Pokémon GO while driving.” Most recently the App can detect when you are travelling at speeds faster than walking or running and will post an alert to confirm you are not driving.
Certainly, walking through the streets with your head down is bound to lead to injury. It is also dangerous for other pedestrians and drivers. There is no doubt that driving, walking, cycling or running while playing this game is unsafe and will result in a finding of negligence on the player’s part. But what about the driver that hits the Pokémon GO player? We live in a jurisdiction where there is a reverse onus for liability where pedestrians are hit by motor vehicles. This is problematic and will trigger fault where maybe none should be placed. Pokémon GO players should be aware that, if liability is proven, their portion of fault for causing or contributing to the accident will be taken into account and may reduce their potential claims for damages.
It goes without saying that playing this game while driving is an absolute “No No”, especially with the Province’s new ad campaign targeting texting while driving. We are all aware of the dangers of distracted driving. Trying to capture MewTwo while driving so you can have a fun screenshot is no exception.
Niantec requires every player to agree to its Terms of Use before playing. These terms are questionable at best. Jurisdiction issues, mandatory arbitration, caps on damages, inadequate provisions for minors and the 30 day opt-out are key issues that will be legally tested. The terms of use are ambiguous and leave plenty of room for interpretation, which leaves Niantec open to potential liability from injured players, and injured third parties. What also remains to be seen is how Niantec’s warnings potentially decrease their liability for personal injury and shift it to the injured player. What does seem to be clear is that Niantec’s legal team is quickly recognizing the potential liability of the game, and identifying ways to protect themselves.
Pokémon GO presents challenges to negligence law, but the core principles of negligence still apply. It is a fun game and a good excuse to explore the city, and get exercise, but for Pikachu’s sake, BE CAREFUL!!
In a related article, Pokémon GO: Personal Injury, Safety Issues, and Liability, we delve further into personal injury liability for Pokémon GO players, property owners and tenants, business owners, drivers, and the game’s publisher and developer, Niantic.
For more information on occupier’s liability and your rights when involved in an accident, contact Melissa Miller at 416-847-1063 or mmiller@hshlawyers.com, or Renee Vinett at 416-361-7560 or rvinett@hshlawyers.com.
