Unless you've been living on a boat in the middle of nowhere or in a cabin without internet access, you've probably heard of Pokémon Go. Never in my wildest dreams did I think I would be writing about the liability issues associated with an electronic fantasy game, but Pokémon Go is not your average craze. With millions of gamers playing it worldwide, the fact that it crosses over from fantasy into the physical world brings some very real liabilities with it, and all of them occur in the real world.
Hopefully there won't be a lot of new claims associated with the game, but if there are, they will be investigated just like any other. A number of auto accidents and robberies have already been attributed to people playing the game. There have even been some shootings and many incidents of trespassers looking for Pokémon “gyms.”
Museums and famous landmarks have not been immune either. Anxious to maximize the game's popularity, some businesses, stadiums and landmarks have offered special times when hunters can search for the elusive creatures without fear of trespassing. A few have even hired “guides” to help the intrepid hunters find characters.
While the players, property owners and drivers all share some liability when there are incidents, the case can be made that Niantic Labs, the creator of the game, could also be liable in some instances. Despite the fact that the end user license agreement a player agrees to before playing specifically states that the individual agrees to binding arbitration for any disputes, and waives any right to a class action lawsuit or jury trial, the company could still be sued by a party who was not playing the game.
And since this is Niantic's second foray into the world of augmented reality, (they released Ingress two years ago), they cannot claim to be unfamiliar with the issues raised by people pursuing fantasy portals and creatures in the real world. Ingress sent players to museums and other places of interest, encouraging them to take photos of sculptures and other infrastructure facilities as part of the game.
Some players were stopped by police for loitering and it raised security issues since the game could be used as a cover for people with terrorist or other malicious intentions.
As is the case whenever new technology is introduced, new insurance issues are quick to follow. (Consider cell phones and autonomous cars.) Regardless of the cause of the claims relating to the game, insurers will be staying firmly grounded in the real world as they investigate and determine what coverage might apply.
Paricia L. Harman is the editor-in-chief of Claims magazine. Opinions expressed are the author's.
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