By MuAndrew rdison
Scene: Twilight at the local park. Midsummer night. We see a hot, humid, orange sky. The air is filled with distant chatter and giggles of children playing. The splash fountain roars close by. We pan down from the wispy, creamsicle clouds to reveal the ramparts and towers of playground equipment; then the topmost jets of the fountain; and then – as French horns ominously swell – dozens of adults wandering, silent, arms outstretched, their gaze fixed on the smartphones clutched in their preoccupied hands. It is impossible to tell whether they are aware of one another, or their surroundings, or anything at all.
No, this is not some zombie show being taped in an Atlanta suburb. This is just life-post-Go – Pokémon Go, that is.1
When I encountered this scene last week, and several like it since then, questions immediately came to mind. Do these people know the legal risks of wandering around in such a distracted state? Will they have a claim against anybody if they get hurt? Will anybody have a claim against them if something unexpected happens? Where is the game developer in all this?2
1. Landowner Liability
Most players who become injured while playing Pokémon Go probably will NOT have a legal claim against the owner of whatever property they have entered during their monster hunt.
Why not? Most often, players will have assumed the risk of injury and/or been negligent themselves.
Assuming the player is on foot, the most immediately foreseeable risk is a simple trip/slip/fall-type injury. One can also imagine players darting into traffic, or lingering in the driving lane of a parking lot (I saw this firsthand at the local Costco), or any number of other vehicle-related hazards.
In the first place, a landowner does not become liable for an injury that took place on her land until she is shown to have been negligent, because she is not the insurer of her visitors’ safety.3 This rule applies even to customers, social guests, and invitees.4
Furthermore, where a property contains an “open and obvious” hazard – such as a big hole, parking curb, uneven pavement, or similar danger – the property owner has no duty to protect against it.5
Most of the time, even a person who is generally aware of his surroundings will have no claim against a landowner when he is injured by an “open and obvious” condition that he simply failed to notice.
How much less, then, will an injury be legally blamed on the property owner when the injured person had his attention distracted by a video game in which he voluntarily engaged? Instead, such players will be held to have assumed the risk of playing Pokémon Go among hazards that were or should have been known to them.6
Additionally or in the alternative, players will have acted negligently themselves by failing to maintain reasonable attention to their surroundings. This rule should apply even to those commercial and educational establishments that are encouraging Pokémon Go players to congregate on their property. Certainly, protection should also be afforded to those individuals who have awoken to find their homes surrounded by Pokémon Go players.
But, ordinary (i.e. “reasonable”) care is owed to invitees, so commercial and public establishments still have a duty to warn invitees of dangerous conditions which are known or reasonably should be known to the owner, but not to any invitee, i.e. “hidden” hazards.7 Assumption of the risk might not be a defense where the condition would have caused injury even to an attentive player (especially when the person was invited for the purpose of playing the game), but contributory negligence might apply if a player’s distracted attention prevented him or her from avoiding harm that could have been avoided.
For trespassers, there is even less chance of maintaining a case against the property owner, even for hidden dangers. Because the owner of property has a legal interest in protecting the exclusiveness of his or her possession, intruders have no right to demand a safe area upon which to trespass. The responsibility for a trespasser’s safety is his or her own8
What about those players who have been subjected to criminal attacks? Players might be attacked while their guard is down, or they might be affirmatively lured to a secluded location using the game and then attacked or robbed.
For such actions, property owners are typically not liable at all. Again, a landowner is not the insurer of the safety of his or her premises.
Only where a third-party crime is reasonably foreseeable to the landowner can the owner’s acts or omissions be found a contributing proximate cause of the visitor’s harm.9
Foreseeability is typically proven with evidence of other, similar bad acts occurring at or near the landowner’s premises at some time in the not too distant past.10
Thus, unless the property happens to be the frequent site of criminal attacks and the owner has provided inadequate security measures, and the Pokémon Go player is something more than a trespasser, there will be no liability on the landowner’s head in these types of cases.
2. Liability of Niantic/Nintendo
Perhaps the video game companies should be held liable for some injuries sustained by players of the game. But they probably will not be.
One way of arguing for manufacturer liability would be to focus on the conduct that the game companies knowingly encourage. On that front, plaintiffs will meet with a First Amendment defense: video games generally enjoy First Amendment protection as speech or expression. The distinction between information and entertainment is so minuscule, that both forms of expression are entitled to First Amendment protection.11 Even video game speech that expressly advocates criminal activity cannot be the basis for liability, unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”12
Unless Pokémon Go is found to be “directed to inciting” a lawless act such as trespassing, the game creators will be protected by the First Amendment.
For example, in Wilson v. Midway Games, Inc., 198 F. Supp. 2d 167, Prod. Liab. Rep. (CCH) ¶16314, 106 A.L.R.5th 759 (D. Conn. 2002), the mother of a child who was killed by a friend brought an action against the manufacturer of “Mortal Kombat,” for negligence and intentional infliction of emotional distress. The plaintiff’s child’s friend had stabbed the child in imitation of the character Cyrax; the plaintiff sued Midway Games, claiming the friend had been incited to the act by the game. Even with that violent game, though, the plaintiff’s claim failed because it targeted the expressive elements of the game—its plot, characters, and other elements—and the game’s images or messages were not directed to inciting or producing imminent lawless action so as to be excluded from First Amendment protection.
Of course, Pokémon Go is somewhat different, because moving around in space – potentially including on property that does not belong to the player – is how the game is played. Therefore, it is conceivable that a plaintiff could coherently argue the game “incites,” or even requires, unlawful acts to some extent. However, without having installed it on my own phone, I assume the game warns players not to enter the property of others without permission. If not, some court, somewhere might find the game manufacturers incited trespassing. Otherwise, there is not much chance of liability for Nintendo and Niantic.
It is also possible for a child plaintiff to hold adult defendants liable on the ground that they invited him to do something posing a foreseeable risk of injury. In these so-called “pied piper” cases, (1) there must be an express or implied invitation extended to the child to do something posing a foreseeable risk of injury; and (2) the defendant must be chargeable with maintaining or providing the child with the instrumentality causing the injury.13
This doctrine exists because “when children are in the vicinity, much is necessarily to be expected of them which would not be looked for on the part of an adult. It may be anticipated that a child will dash into the street in the path of a car, or meddle with a turntable. It may be clear negligence to entrust him with a gun, or to allow him to drive an automobile, or to throw candy where a crowd of boys will scramble for it. There have been a number of ‘pied piper’ cases, in which street vendors of ice cream, and the like, which attract children into the street, have been held liable for failure to protect them against traffic.” Prosser, Law of Torts 172, 173, s 33 (4th Ed. 1971).
For child players of the game, then, it is slightly more conceivable for Nintendo and Niantic to be found liable for injury sustained during game play – but probably not if they have provided adequate warnings within the software.
3. Don’t Pokémon Go and Drive, or Do Any Other Dangerous Activity That Requires Your Attention
Finally, it may seem obvious, but players of the game will be subject to liability for injuries they cause while their attention is inappropriately distracted. No legal analysis needed here; it is just common sense. Unfortunately, common sense is not as common as one might hope
The coming months and years will surely expose, and maybe answer, many more questions about Pokémon Go’s legal effects. If you find yourself on the receiving end of a Poké-claim, or just want some Poké-advice, the attorneys at Fulcher Hagler are ready for your Poké-call.
- In this game of Augmented Reality (AR), players use their smartphones as viewfinders, on which digital pocket monsters (Pokemon) appear for the catching. Based on the web of GPS tagged locations created by users of the earlier game “Ingress,” the Pokemon show up in all sorts of locations, from parks to churches to museums and private residences. Also, some locations serve as “Pokegyms” and “Pokestops,” where players can “train” and collect “supplies. See generally https://fulcherlaw.com/wp-contenten.wikipedia.org/wiki/Pok%C3%A9mon_Go.
- NB: this is a sketch, not an exhaustive discussion.
- See, e.g., Preuss v. Sambo’s of Arizona, Inc., 635 P.2d 1210 (Ariz. 1981); Thompson v. Beard & Gabelman, Inc., 216 P.2d 798 (Kan. 1950); Dalmo Sales of Wheaton, Inc. v. Steinberg, 407 A.2d 339 (Md. 1979); Krone v McCann, 638 P.2d 397 (Mont. 1982); Schaff v. Meltzer, 114 A.2d 167 (Pa. 1955); Bruno v. Pendleton Realty Co., 124 SE2d 580 (S.C. 1962).
- See, e.g., Leonard v. Enterprise Realty Co., 219 S.W. 1066 (Ky. 1920); Harbourn v Katz Drug Co., 318 S.W.2d 226 (1958); Clark v. Fehlhaber, 56 S.E. 817(Va. 1907).
- Generally, a defendant does not have a duty to protect against an open and obvious hazard. Graupmann v. Nunamaker Family Ltd. Partnership, 136 So.3d 863 (La. Ct. App. 2013).
- Gamble v. Town of Hempstead, 281 A.D.2d 391, (N.Y. 2001).
- Home Public Market v. Newrock, 142 P2d 272 (Colo. 1943); Forsberg v M.L. Parker Co., 139 N.W.2d 315 (Ia. 1966); Di Noto v. Gilchrist Co., 125 N.E.2d 239 (Mass. 1955); McIntosh v. Linderkind Lumber Co., 393 P2d 782 (Mont. 1964).
- See, e.g., McPheters v. Loomis, 7 A.2d 437(Conn. 1939); Great Atlantic & Pacific Tea Co. v. Wilson, 408 N.E.2d 144 (Ind. Ct. App. 1980).
- See Barnard v. Menard, Inc., 25 N.E.3d 750 (Ind. Ct. App. 2015); Giambruno v. Crazy Donkey Bar and Grill, 65 A.D. 3d 1190 (N.Y. App. 2009).
- See South ex rel. South v. McCarter, 119 P.3d 1 (Kan. 2005); see also Rogers v. Sunbelt Mgmt. Co., 52 F. Supp. 3d 816 (S.D. Miss. 2014) (holding that lack of foreseeability means there is no basis for finding duty or proximate cause).
- Time, Inc. v. Hill, 385 U.S. 374, 388 (1967).
- Brandenburg v. Ohio, 395 U.S. 444 (1969).
- Southland Butane Gas Co. v. Blackwell, 88 S.E.2d 6 (Ga. 1955); Wade v. Roberts, 163 S.E.2d 343 (Ga. App. 1968); Roberts v. Bradley, 150 S.E.2d 720 (Ga. App. 1966). However, whether contributory negligence or assumption of risk on the part of a child bars recovery is peculiarly a question for the jury. See, e.g., Heath v. Charleston, etc. R. Co., 130 S.E.2d 712 (Ga. 1963); Vickers v. Atlanta & W. P. R. Co., 64 Ga. 306 (1879); Jackson v. Young, 187 S.E.2d 564 (Ga. App. 1972); Beck v. Standard Cotton Mills, 57 S.E. 998 (Ga. App. 1907).