Examining The Validity of Pokémon Go Injury Claims

By Michael GrossmanAugust 11, 2016Reading Time: 8 minutes

"It's all fun until someone loses an eye."

Lately, I hear those words echo in my head whenever I contemplate the current Pokémon Go fad.

Whattymon What?

Pokémon Go is a downloadable smartphone-based app where the user plays the part of a "trainer," moving around the real world and attempting to catch cartoon animals (Pokémon) that are superimposed on the terrain rendered through the phone's camera. The game is an augmented reality gaming (ARG) experience, in that real-world elements are overlaid with elements of a fictional game universe.

It's okay if you need to read that again. Here's a visual of what players tend to see, if it helps:

Pokemon Go

The franchise is owned by the aptly-named Pokémon Incorporated. Working in partnership with Niantic, Inc., they released the game, which has netted $22.4 million by its third week of existence. It's projected to pull down something like $200 billion in a ten-year span.

The game has brought people from virtually every demographic together to capture these fictional creatures. It also encourages players to go outdoors and exercise (walking to areas where Pokémon can be found), offering them the incentive of flashing lights and the dopamine rush of catching pixelated prey.

Pokemon Go Gathering

Over 5,000 "trainers" gathered near Chicago's famous "Bean" with the specific goal of staring at their phones en masse.

Surrounding Controversy

It's not all togetherness and warm fuzzies, though.

Critics have pointed out that the geographic data used by the Pokémon system has players hunting around in locations deemed highly inappropriate for play, such as Arlington Cemetery, The National Holocaust Museum, Auschwitz, and the 9/11 Memorial at Ground Zero. Flinging a Pokéball around such austere locations is nothing but tacky, but that hasn't stopped dedicated players.

Pokemon at 9/11 Memorial
A player gains a Charmander at the expense of common sense near the 9/11 Memorial.

The game has also been heavily criticized for its potential to deal out physical harm.

Shortly after Pokémon Go's release, doctors issued warnings about the most common injuries they expected players to experience:

  • Skin Damage (UVB ray reflections off of your phone screen)
  • Sunburn
  • Sprains, Fractures, and Broken Bones from ignoring terrain
  • Blisters
  • Potential Addiction due to reward-feedback system

They were right, but it also got worse than that; reports came in of snake bites, stabbings, robberies, falls, and even a possibly-related shooting death in Guatemala. The bulk of the injured though are preoccupied players either driving or being hit by vehicles.

Distracted driving is a serious and building problem. The NHTSA notes that annual traffic fatalities are on the rise; those climbing numbers are probably best attributed to mobile technologies. The more things smartphones can do, the less likely we can stop fidgeting with them, even behind the wheel. Trouble is almost guaranteed to follow when you take your attention off steering a multi-ton projectile powered by explosions. Given that Pokémon Go is a shining example of distracted real-world navigation, it's not likely to contradict that.

Pokemon Bomb Rider
Exhibit A.

Who's Responsible for Pokémon Go Injuries?

Pokémon Inc. itself hasn't really gotten much legal attention outside of crushing occasional copyright infringements. Until now the only injuries associated with its products might be eyestrain or carpal tunnel from playing a GameBoy. Even now with their new venture, the first lawsuits directed at them and Niantic are from owners of private property upon which players regularly trespass to catch Pokémon.

The hurt put on you by the world you're too engrossed to pay attention to, though--that's going to be different. There will inevitably be claims against these companies for injuries brought on by game-driven neglect of one's surroundings.

Most injury cases, including those rooted in product liability, are based on proving negligence. In order to show that a company is liable for one's injury, a plaintiff must first show that the company's product had harmful elements that weren't explained adequately to consumers.

Proving that compensable negligence occurred requires four key elements. Let's take a look at each of them in the context of player injuries:

  1. Duty: The defendant owed the plaintiff a legal obligation to keep from harming him or her with the purchased good or service.

    It is generally understood that a company has an obligation to its clients or customers to protect them from harm. The item or service produced by the company should not cause damage that has not been explicitly advised as a possibility.

     

    As the makers of this product, Niantic and Pokémon have a duty to their user base not to bring them to harm. It's an implied contract that begins at the time the game is purchased.

  2. Breach: By action or inaction, the defendant failed to observe their legal duty to the plaintiff.

    It would not be a huge stretch to think that Pokémon/Niantic breached their implied duty. Given that their platform involves taking one's eyes off a world that is positively lousy with physical hazards, it seems like these companies almost casually brush off the need to adequately prepare their players.

     

    The game does include a warning screen encouraging players to look up/around as they move, but it's not exactly poignant:

Pokemon Go Warning Screen
Great. Now change that Gyarados into an incoming car so maybe I can take this seriously.

Based on the climbing injury numbers, I don't think "Stay aware of your surroundings" really imparts the peril users may face by staring at their phones in dangerous places. It's pretty nebulous, and a warning that doesn't really warn isn't good enough.

As we briefly touched on before, Niantic and Pokémon Inc. use geographical metadata that sends players to some inadvisable places, suggesting nobody is vetting the data before tossing it into the world. Players don't always end up at war memorials and other insensitive locales, though; the animals appear in safety-compromising locations like the middle of the street, inside the cabins of vehicles (causing drivers to ignore traffic safety), and in hazardous terrain. Some examples:

  • Two men fell off a cliff in California while chasing their prey. Both sustained injuries and had to be transported to a nearby hospital. Why were there Pokémon to catch in such an unsafe area? Niantic's "Hey Maybe Look Out if You Feel Like It" warning screen failed to deter them, as did the area's posted hazard signs. They were too invested in the game to exercise good judgment.
  • A young girl was compelled to cross a busy highway to capture a Pokémon in Pittsburgh. On her way home, she was hit by a car. She and her mother maintain that were it not for the game, she would never have been in the area at all, and that crossing a highway on foot is highly out of character for her.
  • Two people in Quebec City backed their car directly into a police vehicle because the driver was playing the game. The civilians immediately exited the car and blamed Pokémon for their distraction.

I think the argument could be made that given the variety of damages that have stemmed from this game, its makers haven't invested enough in player safety. It follows, then, that their failure to protect players would qualify as a breach of their duty toward them.

  • Causation: The breach of duty was the proximate (direct) cause of the plaintiff's injuries.

    There's a couple of elements to this; the first is Cause in Fact, where it is decided which possible cause in a scenario is the proximate one. This can tested with a "But For" statement, in which an attorney tries to establish the causal link between A and B.

    But for playing Pokémon Go on his phone (A), my client would not have been distracted while walking, and would not have been hit by a car (B).

    That seems to hold water to me as an argument. The client was playing the game and didn't see the car coming. Pokémon and Niantic created and supplied that game, which in turn was the cause of the user's distraction.

    The second element to look at is foreseeability--the ability to predict that something could happen because of a product's flaws. Based on Niantic's Terms of Service screen when you first start playing, it appears they are well aware that this kind of game can get someone into trouble:

  • Niantic Terms of Use
    (Click for full image) To paraphrase something I saw recently, "With a warning label this big, you know it's going to be fun!"

    In case you missed it, Niantic actually encourages players to make sure their insurance policies are in order before they boot up. Yikes.

  • Damages: You suffered injury or harm as a direct result of the defendant's negligence.

    In these cases, physical damages are demonstrably present. A pedestrian hit by a car usually gets hurt. Stabbings don't exactly tickle, and neither does a snake bite, even if it's not venomous.

    There's also the more minor damages we mentioned before: blisters, bruises, sunburn, broken bones, etc., and the potential psychological hazards, such as addiction or loss of consortium.

  • All four of these elements must be proven true to present a viable claim, and with Niantic's haphazard asset placement and blasé attitude toward user safety, it's easy to think injured Pokémon trainers could have a basis to pursue compensation.

    In any court proceedings, it is very likely that the makers of Pokémon Go will argue that the user agreement is a waiver, which shields them from any liability. It is certainly a formidable obstacle, but not one that cannot be overcome in the right circumstances. Implied by the agreement is that the game is not dangerous, that monsters a placed in reasonably safe locations that do not endanger players.

    The key to proving to a court that the agreement doesn't apply is to demonstrate that the company was careless with the placement of monsters. If careless and dangerous placement of monsters can be proven, then it is possible that a court could decide the agreement doesn't apply. This would allow the case to proceed like any other personal injury case.

    Practice Safety First, But Seek Help if You're Injured.

    I know a lot of smart people who play this game. I don't doubt their ability to look after their own safety. I can't say I feel the same confidence about everybody, though. For instance, the Bosnian government recently had to plead with its citizens not to pursue Pokémon in a forest with an estimated 120,000 active land mines still planted from its armed conflicts in the 90's. They wouldn't have a valid claim in the American courts, of course, but I feel it's a good example of what can be expected from committed players.

    Fatalities are minimal to date, but people have walked over edges, run into walls and trees, gotten in fistfights, been robbed at gun- and knifepoint, and been both the crasher and crash-ee in auto cases. The game has a lot of potential for injury, and it doesn't really seem like any real planning was done by these companies to help prevent that. All you get is a lukewarm warning and a very thorough disclaimer. If you get seriously hurt playing, it might be time to consult an attorney to talk about your options.

    Lawsuit or not, though, please be careful when you play this game.