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Who is responsible if you are injured playing Pokémon Go?

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You cannot go anywhere without seeing, hearing, or reading something about the new Pokémon Go game.  Typing “how to” into Google shows that two of the top four searches are about how to play it.  The game has been out less than ten days yet it appears to have taken over the world.  It is being credited with raising Nintendo’s stock value by over 25 percent.  However, as the game continues to grow in users, we are beginning to see some of the negative repercussions, people getting robbed and injured while playing the game.  This begs the question, who is responsible if you are injured playing Pokémon Go?

Pokémon Go is an augmented realty game.  This means that your smart phone shows you the real-world environment supplanted or augmented by computer generated graphics.  In  Pokémon Go, the real world is supplemented by including Pokémon monsters when you look at your phone screen.

Thus, thousands of people are now walking through the world staring at their phone screens tracking Pokémon.  This can become an issue as people may be drawn to visit areas they are unfamiliar with trying to track Pokémon.  Even worse, these people may fail to keep a proper lookout as they are looking at “reality” through their phone screens.  This can greatly decrease your awareness of your surroundings and your peripheral vision.   Walk through any high traffic area, such as downtown Belleville or the Central West End of St. Louis, and you will see groups of twenty something’s staring at their phones playing the game.  So what happens if one of these people are injured because they are trying to catch or track a Pokémon?  What happens if they accidentally injure someone else?  For example, what happens if you are tracking a Pokémon and fall into a ditch?  Walk into a biking lane? Or, even  worse, walk into the street when traffic is oncoming?  Could Nintendo be responsible for your injuries?

Is Nintendo Liable for your Injuries while playing Pokémon Go?

Nintendo and its partners have certainly attempted to prevent any liability.  When you load up the game you are shown a screen encouraging you to stay aware of your surroundings.

Pokemon-Go-Injuries

Further, Nintendo has a “Safe Play” clause in the terms of service for the game.  This clause advises you to remain safe during your play, suggests that you maintain all necessary insurance policies, and reminds you that you play the game at your own risk.  Basically, injuries are not their problem.  In fact, in these terms of service, Nintendo and its partners “declaim all liability related to any property damage, personal injury, or death,” that may occur during the use of the game.  Further, if you agree to the terms, you actually waive your right to file a lawsuit and agree to submit to arbitrate any dispute you have with Nintendo and its partners regarding the game.

So the question becomes, is that enough?  Does a few warnings in a terms of service insulate Nintendo and its partners from any liability for those injured, robbed, or even killed while playing the game?  Unfortunately, generally, it is.  Courts are extremely hesitant to invalidate terms of service once both sides have agreed to them.  This does not mean a case is impossible, but does mean it would be highly difficult to maintain a claim if you agreed to the terms of service with Nintendo and its patterns.

Can Terms of Service Prevent you from Recovering for your Injury?

But what if you never agreed to the terms of service?  For example, what happens if you’re in a car accident that occurred because the other driver was playing Pokémon Go while driving.  You were never even given the chance to opt in or out of the game’s terms of service in that scenario. In fact, you may not even know what Pokémon Go is until after the accident.

Pokemon-Go-Liability

The arguments are clear both ways.  These arguments will certainly be made in the years to come as augmented reality gaming is not going anywhere.  The launch of Pokémon Go marks what will likely become the largest augmented reality game so far.  Producing how the Courts will rule is difficult.  Games like Pokémon Go have existed before, but nothing on the same scale.

Will Nintendo and its Partners Change the Game if too many People are Injured?

The question will likely turn on the issue of foreseeability.  Could Nintendo and its partners involved in Pokémon Go have foreseen these issues?  And if they could not have foreseen them prior to the game’s release, can they see them now?  Will they update the game to prevent gamers from playing the game while driving?  Will they use the game’s GPS system to try and help warn players of upcoming dangers?  A quick Google search reveals there are people falling into ditches, getting mugged, and even finding dead bodies while playing the game.  These problems will not likely go away anytime soon.  In fact, some users have discovered code within Pokémon Go indicating that a partnership encouraging users to go to McDonalds will be coming soon.  Could the release of a rare Pokémon only available at certain McDonalds locations cause vehicle accidents?  Only time will tell.

The United States court system, by design, is generally slow to react.  However, they may be forced to take action quicker than usual given that there are already 9.5 million estimate Pokémon Go users.  The debate over video games and liability is just beginning.  If you or someone you know needs legal assistance, contact an experienced accident attorney at Hipskind & McAninch, LLC, for a FREE CONSULTATION at 618.641.9189 | 314.312.2930 | info@hm-attorneys.com.

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