As a big law firm involved in the defense of Product Liability cases, of course we are interested in how Product Liability law will evolve to address the App Economy.
Mobile apps (apps) are software applications designed to work on smart phones or tablets. The consumer’s first introduction to apps were the “native apps” that increased the user’s productivity or provided general information retrieval from the internet. Those native apps were features such as a web browser, email, calendar or stock ticker that typically come pre-bundled in the device. Shortly after the introduction of the smart phone, software designers started building apps that could be downloaded to mobile devices that provided the user with more capability than the pre-bundled native apps offered by the manufacturer of the device.
Now there are apps for purchasing goods and for procuring service providers such as handymen, cleaning services and transportation. There are apps for health monitoring and there are apps for entertainment. Most apps are free. This is even the case with apps that are entertainment games.
A threshold issue is whether courts will view apps as “products” within the legal doctrine of Product Liability. Some apps connect service providers with consumers who are in the market for their services. In these instances, the app itself is not an end product used by the consumer. There is a service that is being provided by an independent contractor such as a car driver or a handyman.
Some apps are used by retailers of traditional goods. The retailers may be an online retailer or a traditional big box retailer or a department store. In these instances, the retailer is the chain of distribution. But, there is a traditional product delivered to a consumer. These retail and brokering apps many not be viewed by courts in the same fashion as traditional hard products.
The Pokémon™ GO app, which has received a lot of attention recently in the marketplace, is a game that is played by consumers. The app itself is the item that consumers want to obtain and to use. These apps are likely to be viewed by courts as products within the Product Liability doctrine.
The widespread publicity associated with Pokémon GO demonstrates the types of allegations that may be asserted by Product Liability claimants. There are media reports that Pokémon GO players have walked into hazardous situations because they were concentrating on the game and unaware of their own movement. There are reports that players followed their Pokémon GO targets so ardently that they did not hesitate to trespass onto private property, and reports that game players were the victims of violent crimes who did not see an attack coming.
In light of these media reports, we can anticipate that there will be Product Liability claims asserting that gaming apps should provide warnings against distraction. There will be allegations that gaming apps should require users to acknowledge that they have read warnings against distraction prior to allowing the software to load on the device. Warnings cases are likely to be the first wave of litigation against gaming apps. Even when apps have warnings against distraction, we can still expect plaintiffs’ attorneys to claim that the warnings were not adequate. Courts across the country will be required to decide if there is a duty to warn against distraction.
The law does not require a manufacturer to warn against open and obvious hazards. While I play Pokémon GO − it is entertaining and fun − I will certainly never follow a Pokémon across a freeway or onto train tracks. I do not need any warning about those hazards. Similarly, parents know about the need to supervise children in all aspects of life, including their gaming and online activities. Nevertheless, some will argue that it is not costly to add warnings. In response to publicity about Pokémon GO, after the initial release of the app, Niantic added warnings that instruct users to be aware of their surroundings. There is also a warning to users under the age of 13 years that tells them not to get into a car with strangers. By way of other distraction warnings, many of us have seen distraction warnings on sports products, including flying discs.
Pokémon GO is an example of an “Augmented Reality” app. The game is depicted in the context of your real-word environment. In this context, more sophisticated Product Liability defect allegations may also be made. Some may allege that sufficient artificial intelligence exists in order to detect hazards and to provide pop-up warnings. Some may argue that hackers are foreseeable and that cybersecurity design features were defective. Some may allege that there should be design features that prevent games from being usable in moving vehicles. Pokémon GO has click-through warnings against playing the app while driving.
We also have to consider that there will be Product Liability claims by third parties. Users of gaming apps may injure pedestrians. An app user knows his environment. He can identify hazards and has the opportunity to avoid them. Injured pedestrians are in a different position.
Currently, there is a class action lawsuit in California against the providers of mobile phone services. The class action seeks to get the providers to contribute to public prevention and educational causes against distracted walking and distracted driving. We expect there will be many public service announcements about this. There is also a current report about a property owner who is commencing a lawsuit against the providers of Pokémon GO because of the number of trespassers that he has experienced on his property. The progress of these cases will affect how warnings cases are viewed by other courts.
Traditional Product Liability defenses may not apply in the defense of cases involving gaming apps. Modification of a product is a common defense issue. But modification of an app will be rare. Non-foreseeable misuse of a product is also a common defense issue. However, in the context of gaming apps when there is intended physical movement as part of the game, misuse may be interpreted very narrowly. Assumption of a known risk is also a Product Liability defense. The elements of that defense will be difficult to apply in the context of a distraction claim. The application of comparative negligence to Product Liability claims in the app context will also be a complex issue.
Further, the apportionment of liability among all of the companies involved in the presentation of an app to the public also will become very complex. There will be complicated issues arising out of the relative roles of each company in the development of the app. There also will be complex issues that arise out of contractual relationships.
Of course, government regulations may evolve. There are FDA guidelines about health monitoring apps. Other government agencies may develop guidelines for all types of apps, including games. Insurance coverage issues also will arise with respect to each type of company involved in the development and presentation of apps.