Pokémon Go: When does a game become a personal injury battle?

There might be some new cases for next year’s tort law students to learn

As Pokémon Go players take to Britain’s streets, often finding themselves in unfamiliar places with their attention focused on their smartphones, the likelihood of an accident taking place is on the rise. So if something goes wrong, and personal injury occurs, does the blame lie with the game’s makers or with its players?

The free-roaming aspect of Pokémon Go has already caused a number of accidents and incidents.

In Florida, two teenagers playing the game in a car parked in a residential area were shot at by a man who believed them to be burglars. Meanwhile, in London’s Bexleyheath, another teenage boy was knocked over by a bike when his attention was taken by the game, and a group of youngsters in Hawthorn, Wiltshire, became hopelessly lost in caves and had to be rescued.

It’s no wonder then that personal injury experts are preparing themselves for a flurry of personal injury claims put forward by Pokémon Go players, as highlighted in a previous Legal Cheek article.

Like anyone who intends to make a personal injury claim, with Pokémon Go-related claims there are a number of actions to take as soon as possible after the incident. For example, informing the police and, if appropriate, the council, or land owner. If a physical injury has been sustained, notes of the injury should be kept, and if possible, photographic evidence of the injury should be gathered. It’s also a good idea to write an account of what happened as soon as possible, while the details remain fresh in all witnesses’ minds.

What about children hunting Pokémon on private property?

Many people mistakenly believe that if a child strays onto private property and trespasses, any injury they sustain is, by law, their own fault. In fact, this isn’t necessarily the case.

The Occupiers’ Liability Act 1984 states that there’s a legal responsibility for an occupier in control of land to make sure that either the property is safe should a child trespass, or that it is secure enough that a child would not be able to successfully enter, no matter how determined they are to catch those pesky Pokémon.

Could the game’s makers be liable for personal injury?

The organisations behind Pokémon Go are Niantic, The Pokémon Company, TPCI and Nintendo. Understandably, they’ve put a number of measures in place in an attempt to cover themselves against liability for players’ personal injury claims. As well as a ‘friendly’ welcome that warns players to abide by local laws (specifically mobile phone use while driving) and for them to ‘be aware of their surroundings’, the topic is also covered in the game’s extensive terms and conditions.

Within these T&Cs is a clause that states that unless players email the makers within 30 days to opt out, they have no right to arbitrate against them. It remains to be seen whether British consumer law, notoriously stricter than its US counterpart, would stand by the ‘fairness’ of such a demand.

What about businesses that want in on the Pokémon Go action?

All sorts of businesses, from cafés and shops, to kids’ attractions and activity centres, have been quick to appreciate the huge boost in footfall the interactive game could represent.

Throughout the game there are a series of Pokéstops — dedicated locations that players must visit in order to activate new parts of the adventure. It’s believed that these spots have, so far, been selected at random. Businesses actively encouraging an increased footfall and using the game’s appeal to do so need to still ensure that their premises are safe and have the capacity to handle the increase in footfall with clear signage of any areas not suitable for playing the game.

Furthermore, were the game’s makers to commercialise these chosen GPS locations and introduce associated advertising into the game itself (which is currently being debated with a Domino Pizza Pokémon spoof having already been sighted), businesses buying into the scheme could potentially find their legal position changed.

What if you don’t want players near your residential property or business?

It may be that you run a business for which the presence of Pokémon Go players simply isn’t appropriate. For example, a late night bar, a funeral home, or other predominantly adult locations. Or, you may be unlucky enough to find that a Pokéstop or Pokégym exists in the immediate proximity of your home.

Trespass laws are on your side and if someone comes onto your property without permission, you can call the police. It’s also worth remembering that in order to ‘catch them all’, Pokémon Go players shouldn’t need to trespass.

In terms of the likely outcome of any Pokémon Go-related personal injury claims, these are early days, and what needs to be remembered is that no matter if player or business standard laws still apply, i.e. your premises still need to be safe even if people are looking at their phones, and even if there is a rare Pokémon around, you can’t ignore the law (so far the most common law broken by avid players has been playing the game while driving).

The game’s makers, the players themselves and the organisations who find their premises caught up in the saga will no doubt be watching closely as the first claims are made.

Sarah Cunliffe is a personal injury associate at Access Legal.