Pokemon Go! …Or Not?

Have you heard about the new craze? If you are on Facebook or have turned on the news in the past two weeks, surely you have heard of Pokemon Go. This new app utilizes your phone’s GPS and clock to detect where you are at any given time and makes Pokemon characters appear in your area for you to catch. These characters can be found in any public places. Businesses even have the option of purchasing “lures” to attract Pokemon characters and, thereby, entice potential customers. This seems to be the start of a new trend for phone apps and games – a role playing game that interacts with your reality.

This seemingly innocent app, however, is raising a number of legal questions. The terms and conditions of the game disclaim liability for property damage, personal injury or death while playing the game, as well as claims based upon the violation of any other applicable law. Why would that be necessary? The app specifically warns users to be aware of their surroundings while using it, anticipating the distraction that has already been evidenced by its use. News reports have identified instances of accidental injuries (slip and falls), car accidents and muggings. To the extent businesses are specifically inviting Pokemon Go players with specials or utilizing “lures,” are there possible premises liability implications for that business if a distracted Pokemon Go player injures himself while tracking down a character? To what extent are such businesses responsible for individuals “lying in wait” for patrons that are specifically seeking to capture Pikachu? In other words, does a business owner have a heightened level of responsibility for the safety of its patrons having drawn patrons whom she specifically knows that her patrons are distracted by a specific app?

Although premises liability cases in various jurisdictions typically examine the knowledge of the property owner or tenant for prior incidents, they also examine the level of knowledge of a property owner for specific conditions at the property. Where business owners are inviting patrons who they know to be distracted, this may turn conditions that are normally innocuous into dangerous ones.

Clearly this is very new and it remains to be seen how it will be implicated. The makers of Pokemon Go, however, have specifically sought to protect themselves against any liability resulting from playing of the game. In this regard, we recommend that, to the extent a business owner seeks to entice Pokemon Go users, it should likewise take measures to protect itself from claims.

ABOUT THE AUTHORS: Elizabeth Terrill is Senior Counsel at Tyson & Mendes. Ms. Terrill specializes in the areas of construction defect and construction injury claims. Contact Elizabeth at 858.263.4113 or eterrill@tysonmendes.com.

Paloma Ramirez is Senior Counsel at TYSON & MENDES, LLP, and primarily represents clients in complex litigation, including construction defect, insurance law, property disputes, and product liability. Contact Paloma at 858.263-4117 or pramirez@tysonmendes.com.

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