Robert “Skip” Myers, comanaging partner of the Washington, D.C. office and cochair of the Insurance and Reinsurance practice at Morris, Manning & Martin, explores the liability issues surrounding Pokémon Go, the augmented reality phenomenon gripping teenagers and adults around the world.
Pokémon Go opens the uncharted space between reality and digitally augmented reality, which creates opportunities for mishaps, accidents and losses that heretofore have not been contemplated. Players of the game are in the real world while, at the same time, pursuing objects in the digital world. They may be driving, walking, bicycling, or skating, but they are, at least some of the time, distracted by the game and vulnerable to negligent behavior which can lead them to injure themselves or others, or to take actions which may damage the property or privacy rights of others.
This creates an insurance underwriter’s nightmare and a trial lawyer’s dream! The developer of the game (Niantic) requires each player to execute a broad waiver which requires arbitration of any claim (which includes an optout), and Niantic presumably has some very comprehensive liability insurance coverage. Nonetheless, children who play the game cannot be bound by the waiver. More importantly, the types of damages that may result from playing the game cannot possibly be anticipated.
Niantic can risk manage and obtain insurance against information sharing and privacy risk. These are areas that are at least somewhat understood.
However, the game leads players to do things and go places new to them and for which they may be unprepared. A player could be injured while driving or walking or a nonplayer could be injured by the actions of a player driving or skating. A player could trespass on another’s property, or a group of players could create a public nuisance on public or private property.
Who will be held responsible for all this? Under a traditional tort analysis, none of the above would have happened “but for” Pokémon Go. Of course, the game developer will want to blame the player for his/her negligence, the player will want to blame the game for creating the distraction, and a third party who is injured will want to blame both, or either, and in particular the one with the “deep pocket”, i.e., Niantic.
This is where we get to the trial lawyer’s dream. For example, if the player is held negligent and his insurance (auto liability) pays the claim, will the paying insurer be able to subrogate against the game developer? Did not the game create an “attractive nuisance”, which arguably was the cause of the loss. Or, for example, did the gamer trespass on the land of someone who had a swimming pool (a more traditional “attractive nuisance”) and was thereby injured?
You can see where this is going. All the opportunities for injury and loss cannot be anticipated. Moreover, the law will evolve (although slowly) as more incidents occur. Further, Pokémon Go is just the first to breach the wall between reality and the digital world. New games and business tools will push farther into augmented reality.
Not only game developers will need to make sure they have the broadest forms of coverage. Businesses and individuals should also. You never know when some Pokemon chasing teenager might drive through your fence, damage your house and then drown in your swimming pool!
This article was originally published by Captive Review.
The information presented is for educational and informational purposes and is not intended to constitute legal advice. Readers should consult their professional advisor. Any opinions expressed within this article are solely the opinion of the featured author and not of Morris, Manning & Martin, LLP.