Summary: In the recent fad of playing a new game called Pokémon GO in smartphone application format many insurance questions arise. This article explores several issues regarding coverage and liability for users playing the game.

Topics:
Explanation of the game
Homeowners and renters insurance
Cyber crime and identity theft
Mobile phone insurance
Commercial general liability
Criminal activity
Legal implications
Unwanted pokestop or gym
Request for pokestop or gym
Businesses that have embraced Pokemon GO
Businesses that have banned Pokemon GO
Landmarks and memorials
Summary

Explanation of the Game

The first Pokémon games came to Japan on the Nintendo Game Boy system in 1996. The game allowed the players of all ages to catch, train, and trade up to 151 Pokémon creatures to become a Pokémon master. A Pokémon trading card game was developed soon after and became very popular. The trading cards were soon followed by a TV series that lasted for 16 seasons. Due to the immense popularity of all versions of the Pokémon game among the millennial generation, it was just a matter of time before the nostalgic game was brought back on a technologically up-to-date platform. On July 6, 2016 Pokémon GO was released to the United States, Australia, and New Zealand, and the augmented reality game took the world by storm.

Pokémon GO is an application-based game that can be downloaded to a smart phone. Users see an anime-like version of a map app with no street names or area names, with specific buildings that are replaced with Pokémon specific structures. To begin playing the game, the user creates an avatar. As the user walks around in the real world their avatar within the game walks around the animated Pokémon map. When the user is walking around Pokémon appear which the user can tap on the Pokémon and try to “catch them all”. Because users are walking around in the real world with their eyes glued to the virtual world, many real-world risks arise. Risks caused by distracted Pokémon Go users include personal injury and property damage due to distracted pedestrians, dangerous trespassing, distracted driving, identity theft, property theft, and exposure to criminal and tortious activity. Procuring certain types of insurance prior to playing Pokémon GO is necessary to ensure coverage in case something goes wrong. In fact, in the “terms of service” that a user agrees to comply with before playing Pokémon GO, the software developer Niantic suggests that users obtain several types of insurance prior to gameplay.

Homeowners and Renters Insurance

Homeowners and renters insurance cover many risks that are involved in the Pokémon GO craze. If a house is burgled while the owner or occupant is out “catching them all”, the traditional homeowners or renters policy provides coverage for direct physical loss to personal property caused by theft, including attempted theft. If a user accidently causes property damage to someone else's home, the traditional homeowners or rental insurance would cover property damage for which the insured is legally liable. If a user causes bodily injury to a third party, and is deemed to be legally liable for that bodily injury, the traditional homeowners or rental policy will cover medical payments to others unless it is otherwise excluded.

When the users agree to the fine print in the terms of service they agree to not enter private property without permission. Niantic has also added updates which require users to acknowledge warnings when first opening the app such as “Do not go into dangerous areas while playing Pokémon GO”, “Remember to be alert at all times. Stay aware of your surroundings.” and “Do not play Pokémon GO while driving”. Many users, however, do not read or pay attention to the terms of service, and disregard all warnings the software developing company has given. Because of this, there have been many reported incidents of Pokémon GO users trespassing on private property, sometimes sustaining bodily injury or causing property damage. In one case a homeowner saw a suspicious vehicle parked in front of his home late at night, went out to investigate, and heard one of the occupants of the vehicle ask the other “Did you get anything”. Under the impression that they had robbed his home, he pulled out a handgun and shot several bullets at the vehicle as it sped away, causing property damage to the car.

A traditional homeowner's policy covers personal liability of the insured unless the injury or property damage is expected or intended. So if while playing Pokémon GO on the homeowner's property someone tripped and was injured, the homeowner's policy would provide coverage.

Expected or intended injury caused by the insured is excluded except for injury or damage resulting from the use of reasonable force by an insured to protect persons or property. An insured is allowed to protect his property. Following this policy language specifically, any intentional action by the insured would not be covered by the homeowner's policy unless it was reasonable force used to protect persons or property. For example, a group of friends are out catching Pokémon on a Friday night after seeing a movie and a couple of players wander into the insured's yard when they see a rare Pokémon near the house of the insured. When the insured saw people lurking in his yard in the middle of the night, he grabbed his shotgun to scare off the intruders. The players run off, but not before one is shot in the leg. This personal injury would be covered, more definitely so if the insured had no knowledge of the Pokémon game, or the nature of the game play. Similarly, in the above case where the insured shot at the vehicle at night, those damages would be covered. However, if the insured encounters GO players during the day and confronts them and starts a fist fight because he thinks the game is stupid, injuries to those players would not be covered. The insured deliberately intended to cause injury, and he was not protecting his premises.

For example, if a mother is out with her children catching the local Pokémon, and one of her children twists his ankle when he falls into the insured's fish pond, coverage would be found under the medical payment section of the policy.

Cyber-Crime and Identity Theft

Because of the initial popularity, and the limited release to the US, Australia, and New Zealand Pokémon GO has been very attractive to cyber-criminals. Demand for the game from other countries has opened a door for specific cyber-crime that involves downloading an inauthentic “Pokémon GO” game that is bundled with suspicious malware and adware that can leech information from the user's smartphone. All saved information, including passwords, screen names, email addresses, and credit card numbers, can be taken off of the phone and sold to a third party. Having all of this personal information would also put a user at risk for identity theft.

A homeowner or rental policy would cover some losses due to cyber-crime or identity theft, but for a minimum amount. Obtaining a standalone cyber-crime or identity theft policy can ensure coverage for these digital damages. ISO form HO 04 55 is an endorsement for a homeowners policy called the Identity Fraud Expense Coverage endorsement. This endorsement covers expenses incurred by the insured as a result of identity fraud including costs for notarized affidavits, certified mail, lost income from time taken off from work, attorney fees and other expenses.

Mobile Phone Insurance

Before beginning to play in the Pokémon GO world the prudent user should obtain smartphone insurance. With increased usage and activity, the likelihood that a user's smartphone will get dropped, damaged, lost, or stolen is very high. If worse comes to worst, a lost, dropped, or damaged cell phone will not be covered under a homeowner's policy personal property is named perils, and there is no named peril for dropped electronics. A cell phone policy could provide coverage. See Electronic Device Insurance.

Commercial General Liability

Within a workplace or business, any injury that occurs will likely become the business's liability, particularly if the business is marketing using the app. A business may be unaware where a Pokémon is located on their property and therefore unable to control whether any hazards are present. This becomes difficult to monitor because tripping and slipping associated with Pokémon GO usage is rampant, and much more common due to the distracted nature of the users. Most injuries and damages should be covered under a business's commercial general liability policy. In order to prevent as much liability as possible, businesses should take reasonable steps to protect patrons by posting warnings of obstacles or risks that may be present.

Duty to Defend

The introduction of Pokémon GO has brought many coverage questions to light, questions that probably won't be answered until some of these issues are brought to court. Would an insurer have a duty to defend the insured against someone who was injured on the insureds property while they were searching for Pokémon? Under a general homeowners policy the insurer will “provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent…Our duty to settle or defend ends when our limit of liability for the 'occurrence' has been exhausted by payment of a judgment or settlement.” If an insured is sued for injuries sustained by a Pokémon GO player while on the insureds property, according to the language in the policy the insurer will have a right and duty to defend their insured in the suit.

Will the insurer of Niantic have a duty to defend the software developing company in suits brought against them for bodily injury or property damage caused by 3rd parties playing Pokémon GO? The courts have found on multiple occasions that a cell phone carrier is not liable for injuries caused by an individual using their cell service while they were driving, so long as the carriers have warned of the danger that is present. (see: Williams v. Cingular Wireless, 809 N.E.2d 473 (Ind. Ct. App. 2004) and Estate of Doyle v. Sprint/Nextel Corp., 2010 OK CIV APP 22, 9, 248 P.3d 947, 950)) The situation involving the Pokémon GO app is similar. If a third party is injured by an app user and sues Niantic to recover, if the court follows the trend will probably find for Niantic unless the circumstances are especially egregious.

Another question that arises, does a Commercial General Liability insurance provider have a duty to defend an insured if the injured person puts themselves in danger? Generally under the CGL policy the insurer “will have the right and duty to defend the insured against any 'suit' seeking those damages. However, will have no duty to defend the insured against any 'suit' seeking damages for 'bodily injury' or 'property damage' to which this insurance does not apply.” This provision is largely fact and situation based, and the courts will have to assess each suit individually.

If the insured knows there is a Pokestop on his property near something hazardous or dangerous, and does nothing to correct the situation or warn people of the danger, the carrier may not have a duty to defend. For more information regarding the insurer's duty to defend please reference Duty to Defend Requirement. For state-specific Duty to Defend questions please reference Duty to Defend State Case Law

Criminal Activity

There seems to be a string of criminal activity that is linked to the release of the Pokémon GO app. Users will sometimes wander around alone and are not fully aware of their surroundings because their focus is on their phone screen. Due to their distractedness, users are more likely to find themselves in places where they would not normally travel on their own, specifically to locations that are prone to criminal activity such as down dark alleys, in secluded spots in the woods, or behind buildings. Users of the app can use “incense” or “lure modules” that are intended to lure Pokémon to a certain location to lure unsuspecting Pokémon players into a compromising situation. Criminals have been able to utilize some features of the app to draw unsuspecting individuals into robberies, muggings, and stabbings.

Even if the user was not intentionally lured down an alley, if they end up somewhere questionable due to the application there will be an increased probability that harm will come to them at the hands of another.

On the other hand, some police forces have started using Pokémon GO to help deter crime. With increased numbers of pedestrians out in neighborhoods, Police are asking users to report anything they see that is suspicious. Some police forces are also attempting to get Niantic to put Pokéstops or Gyms in areas where break-ins occur often, to increase foot-traffic in those areas. Police in California are crediting two Pokémon GO players with the arrest of a man wanted for murder.

Legal Implications

Many law enforcement offices across America have issued warnings, advising users to be aware while playing and to not break any laws or rules while playing Pokémon GO. Sometimes the allure of a rare Pokémon takes over for a player's better judgment. Just days after the release of the game Robin Bartholomy and Adrian Crawford were arrested near the Toledo Zoo's tiger exhibit at 2:30 am. The two were discovered in the zoo via security camera and were arrested and booked for illegal trespassing after spending an hour in the zoo. The couple was banned from the zoo.

Legally, the actions of a Pokémon Go user do not implicate Niantic Labs, the producer of Pokémon GO. Players waive their legal rights by agreeing to the terms of service of Pokémon GO, unless they email the developer within 30 days of downloading the app and advise that they will be opting out of the waiver.

Elvig v. Nintendo of Am., Inc., No. 08-CV-02616-MSK-MEH, 2010 WL 3803814 (D. Colo. Sept. 23, 2010) is a case involving a boy who was playing the Wii when the safety strap on the controller broke causing the controller to fly into the television, breaking the TV. The court decided that the warning included with the Wii system ensures that “if the player follows Nintendo's instructions and heeds its warnings, the Wii system does not pose an unreasonable danger.” The court also said “because Nintendo gave explicit, precise warnings seeking to alert users that misuse of the product could result in the very danger that caused the injury, it cannot be liable for the plaintiff's failure to heed that warning.

When the Pokémon GO app is loading, a warning is shown on the screen which says specifically “Remember to be alert at all times. Stay aware of your surroundings.” If the precedent set forth in the Elvig case is followed, and we take into consideration the vast “terms of service” Niantic Labs has put in place, it would be easy to argue that Niantic Labs is not liable for injuries and property damage suffered or caused by Pokémon Go users.

Unwanted Pokéstop or Gym

After public prodding, Pokémon GO developer Niantic has placed a form on their website that allows users to submit a request that the company removes Pokéstops and Gyms from the augmented reality world. The form is located on the Pokémon GO/Niantic website and will allow users to fill out a form to ask for the removal of a Pokéstop or Gym so long as they know the title of the location where the Pokéstop or Gym is located.

There was a controversy when the Holocaust Memorial Museum in Washington D.C. was designated as a Pokéstop where players can get in-game items. The communications director of the museum said that Pokémon GO is not appropriate for a memorial dedicated to the victims of Nazism, and made a plea to Niantic to remove the Pokéstop, and a plea to the visitors of the Holocaust Memorial Museum to stop catching Pokémon at the memorial site.

Request for Pokéstop or Gym

The CEO of Niantic, John Hanke, has confirmed that sponsored locations for Pokéstops and Pokégyms are soon coming to Pokémon GO. In fact, Niantic began accepting requests to have specific locations considered as a Pokémon GO Gym or Pokéstop. The requests can be made through the Niantic/ Pokémon GO website.

Niantic has become bombarded with requests for addition and removal of Pokéstops and Gyms, so if a request is submitted it may be some time before a response is received.

Businesses That Have Embraced Pokémon GO

In order to increase foot traffic for local businesses, the developers of Pokémon GO have added a feature that allows users to purchase “Lure Modules” which attract wild Pokémon to a specific location for a limited period of time. They can be placed at a Pokéstop and last about 30 minutes. When a user purchases a lure their username appears on all of the other user's screens as they benefit from the lure. A lure costs about $1.19 per hour.

Jungle Jim's, a grocery store in Fairfield, OH has scheduled a Pokémon GO meetup, dubbed “Battle for the Monorail Station” only 2 weeks after the release of the game. Management has also mapped out the on-site locations of Pokémon, Pokestops, and Pokegyms, which are places where users can train their Pokémon.

Best Buy phone outlets have swiftly adapted to the new craze by advertising that their phones are more powerful and thus more capable of running the Pokémon GO app at a higher speed and for longer periods of time.

Many small businesses are offering Pokémon GO users a discount on their purchases, free appetizer or desserts, and free refills throughout the day. Pokémon GO is also sparking the entrepreneur in many young people as lemonade and snack stands have been popping up in front yards all over the country.

In Russia, the countries' biggest bank Sberbank is offering clients up to $800 worth of medical coverage in case of accidental injury while playing Pokémon GO if the injuries are sustained while users are visiting Pokéstops near bank branches across the city.

Businesses That Have Banned Pokémon GO

In order to prevent injuries and breaches in security, companies and businesses have been banning their employees from playing Pokémon GO on worksites, on business property, with smartphones and tablets provided by the company, while driving, during regular work hours, or with smartphones linked to company accounts with access to sensitive information. Having these policies in place will provide companies with evidence that they were aware of the risks that arise while playing Pokémon GO, and that policies were in place to warn employees of these dangers.

For example, the Boeing Company was the first (and only at the time of this writing) employer to ban Pokémon GO on company phones in order to prevent lost time and injuries due to employees distractedly walking into machinery and equipment.

Landmarks and Memorials

Using the online form located on the Pokémon GO website users can report sensitive locations in order to prevent inappropriate game play at hallowed places around the world. Particularly sensitive areas include Holocaust memorials, war memorials, cemeteries, and other national and international monuments, specifically:

Pokémon GO players are banned from playing at the Holocaust museum and at the Arlington National Cemetery both located in Washington DC due to the somber nature of both landmarks.

The Auschwitz Nazi camp banned playing Pokémon Go saying it is “disrespectful on many levels.”

Indonesian officials have banned the playing of Pokémon GO from the presidential palace due to rising security risks and trespassing issues.

Although the app has not officially been released in Russia, there are rumors circulating that Vladimir Putin will ban the game due to perceived links to the CIA.

Saudi Arabian clerics have issued a fatwa, a ruling on a point of Islamic law given by recognized Islamic authority, banning the usage of Pokémon GO as a form of gambling.

The Joint Base Lewis-McChord near Tacoma Washington has issued a warning about the game via social media advising users that they should not chase Pokémon into restricted areas, office buildings, or homes on base, and to be careful in parking lots and while crossing roads.

The College of the Ozarks, and many other colleges and universities has banned players near memorials Pokémon GO.

Summary

Pokémon GO is tremendously popular and has taken the world by storm. It has brought people outside who would normally not venture past their front doors. It has increased foot traffic in cities and towns all over the world, and simultaneously increased chances for liability all over the world. It is prudent for Pokémon GO users and mindful property and business owners to have the appropriate insurance to cover all possible liability, so in the end they aren't stuck with the bill.