Written by Ed Trivette, Esq.
Edited by Janeen Koch, Esq.
Pokémon Go is a mobile device game that has taken the world by storm. It has been downloaded over 50 million times on Android phones alone. The game is a modern adaption of the card game made popular by Nintendo in the early 2000s. Unlike its predecessors, Pokémon Go has a real-world component. The new game encourages players to “hunt” Pokémon, small magical creatures, in the real-world by using augmented reality to make Pokémon appear through the camera on the player’s cell phone.
“You’ll have to stay alert, or it might get away!”
Like most new technology, Pokémon Go has serious real-world legal implications. One of the biggest issues involving Pokémon is that many players stare intently at a mobile device screen in order not to miss out on capturing Pokémon in the augmented reality of the app. Of course, hunting Pokémon in augmented reality can make the actual reality of typical pedestrian perils such as traffic, slippery or uneven walking surfaces and elevation changes much more dangerous.
Thinking through the pursuit of Pokémon and the potential ensuing accidents could, and likely will, supply a law school torts professor with just the sort of open-ended discussion question that first year law students will eagerly fill pages answering. For business owners and their insurance carriers those hypothetical dangers will become actual premises liability lawsuits in the coming months and years.
What Duty is Owed to the Pokémon GO Plaintiff?
The legal duty owed hinges upon the status of the Pokémon GO player with respect to the property where the injury occurs. In the world of Pokémon Go, Pokémon can appear anywhere, on both public and private property. The presence of Pokémon on private property may pose a problem for some businesses.
Trespassing Players
The most common type of premises liability plaintiff faced by business owners is the “invitee” who is present on the property lawfully at the express or implied invitation of the business owner. In Virginia, the status of invitee confers a high duty of care owed by the business owner. “An occupant of a premises has the duty to an invitee: (1) to use ordinary care to have the premises in a reasonably safe condition for an invitee’s use consistent with the invitation, but an occupant does not guarantee an invitee’s safety; and (2) to use ordinary care to warn an invitee of any unsafe condition about which the occupant knows, or by the use of ordinary care should know, unless the unsafe condition is open and obvious to a person using ordinary care for his own safety.” Southern Floors and Acoustics, Inc. v. Max-Yeboah, 267 Va. 682, 689, 594 S.E.2d, 908, 912 (2004).
The Pokémon GO Player who enters a business to hunt Pokémon and not to engage in any of the business of the owner, is not an invitee but rather, a licensee or possibly even a trespasser. Likewise, absent some invitation to enter the property and play Pokémon GO, a player injured while on the private property of an individual will also be a trespasser.
The duty owed to trespassers requires much less of the property owner than the duty owed to invitees. The owner owes a duty “to a trespasser on his premises . . . to do him no intentional or willful injury” and there “must be such notice [to the owner] of the trespasser’s danger as would put a prudent man on the alert before the duty of protection arises.” Kiser v. Colonial Coal Co., 115 Va. 346, 79 S.E. 348 (1913).
As a practical matter, the Pokémon GO player who actually asserts a claim for injury and consults an attorney might end up testifying that the purpose of his or her visit was not solely to hunt Pokémon, but also included engaging in the business of the owner. This type of shifting testimony is a reminder of the importance of getting a statement from the claimant and any witnesses concurrently with the injury itself especially where it appears that the inattention of the Pokémon GO Plaintiff contributed to the injury. At this time it is unclear whether the playing history and habits of the Pokémon GO player will be accessible in discovery issued in litigation to the developer or whether such information is even being retained in a form that would be useful for litigation.
Players as Invitees
The more interesting premises liability issues arise where a business actively encourages Pokémon GO players to visit. Pursuant to opaque proprietary algorithms thousands of locations were designated as PokéStops or Gyms that players can access if they are in close physical proximity. The locations of PokéStops and Gyms tend to have some cultural or historical significance, but many are located on private property in or near businesses. Utilizing the in-game purchase and placement of “lures”, any player, including the business owner, can make a PokéStop become more valuable and appealing to other players. When lures are used at a PokéStop, Pokémon are more likely to appear for a limited period of time. Businesses were quick to take advantage of this opportunity for increased foot traffic. Businesses who actively encourage Pokémon GO players on their premises, particularly businesses who offer promotions or host special events, will arguably owe the duties owed to an invitee to the Pokémon GO Plaintiff. “The duty to protect an invitee is necessarily co-extensive with the invitation.” Raylass Chain Stores, Inc. v. De Jarnette, 163 Va. 938, 946 (1935). The argument one can expect from the Plaintiff’s attorney will be that the business owner invited the Pokémon GO player to the establishment for the purpose of playing Pokémon GO and therefore the Pokémon GO player must be protected from the reasonably anticipated risks. In making such a claim, the clever Plaintiff’s attorney will use the very distracted nature of the Pokémon GO Player against the business to argue that of course the business should expect distracted players paying less attention to their surroundings than normal, and that the business owner should protect such players.
Even the duties to invitees can be satisfied by a business owner though adequate warnings. At the time of this writing, the Pokémon GO app displays usage warnings when opening the app such as “Do not trespass while playing Pokémon GO” and “Do not enter dangerous areas while playing Pokémon GO”. Such warnings seem calculated to shield the developer from liability rather than anyone else. Private business owners who wish to take advantage of the promotional opportunities presented by Pokémon GO would do well to ensure they have their own notices and warnings in place to ensure that their patrons appreciate the need to pay attention to the reality of their surroundings, and not just the enhanced reality of Pokémon GO.
Contributory Negligence
Of course, a plaintiff has a duty to exercise reasonable care for his or her own safety under the circumstances which includes the duty to be attentive. Unless a distraction is sudden and unexpected, it is not a legally cognizable excuse for a plaintiff’s inattentiveness. Although the doctrine of contributory negligence is alive and well in Virginia, it will be of limited use where the Pokémon GO player is a minor. Contributory negligence does not apply to plaintiffs less than seven years of age as they are deemed incapable of negligence. Burnette v. McDonald, 206 Va. 186, 142 S.E.2d 495 (1965). There is a presumption that children between seven and fourteen years of age are incapable of negligence, however that presumption may be rebutted if it is shown that the child had the capacity to understand the perils and dangers of his actions. Endicott v. Rich, 232 Va. 150, 348 S.E.2d 275 (1986). A child fourteen years of age or older “is presumed to have sufficient capacity to be capable of and chargeable with contributory negligence,” however the standard of care for such a child is to exercise “that degree of care expected of a child of like age, intelligence and experience under the same or similar circumstances.” Carson v. LeBlanc, 245 Va. 135 (1963).