It will not have escaped your notice that in the last week, there have been increasing numbers of zombified people walking slowly in seemingly meaningless loops, looking at their phones intently, catching imaginary animals. This is the rise of the fun and addictive game, Pokémon Go – but already reports of accidents have flooded the media. In California, two men fell off a 90foot cliff transfixed by their phones. People have been hit by cars, bitten by poisonous snakes and walked into lampposts, fallen down ditches and broken limbs. Horrifyingly, there has been a rise of drivers hunting Pokémon at the wheel in the pursuit of 'catching them all'.
In this new augmented reality where risk has shot up dramatically, what's the legal position for those injured in their Pokémon adventures?
Can you sue 'Pokémon'?
The creaters of Pokémon Go, Niantic, The Pokémon Company and TPCI have done their utmost to contractually exclude liability for personal injury whilst playing the game. Each time you load the game on your phone you are told to watch your surroundings and stay safe. Officially, they state: 'We take player safety seriously…we encourage all people to be aware of their surroundings. Please remember to be safe and alert at all times, don't drive and play, and abide by local laws'
In other words, be careful and don’t blame us? Almost. The terms and conditions for the UK app (which you can click through and have a look at under the 'settings' tab) look to be the US ones with no amendments made to take account of English law. A big block of capital letters early in the text (typical to US law) state that, unless you opt out (by email, within 30 days), you are bound by individual arbitration and you lose your right to litigate through the courts. Consumer laws in England and Wales tend to be far more stringent in the US, and the English Courts would consider the fairness of any limitation to a consumer's rights in deciding enforceability of contractual provisions.
The terms and conditions also state that, 'to the extent permitted by applicable law, Niantic, The Pokémon Company and TPCI disclaim all liability related to any property damage, personal injury or death that may occur during your use of this app'.
That's heavy stuff, but under English law a company cannot exclude or limit liability for personal injury or death caused by negligence. However, this prohibition only applies if the injury or death was due to the 'negligence' of the company – not the negligence of the Pokémon hunter. Various situations might arise here. For instance, imagine that Niantic and The Pokémon Company had 'placed' a Pokémon in a dangerous location. Catching the Pokémon would require the user (who may well be a child) to put themselves at risk to 'catch' the Pokémon leading to a personal injury.
Would it be foreseeable that the user would put themselves in danger to try and reach it? Perhaps. Would Niantic et al therefore be liable? Perhaps not. The game is only a week old, and without any previous litigation it would be difficult to say how the law of negligence would be applied, but remember the user has probably not 'opted out' of the terms and conditions, which aim to try and prevent litigation through the Courts. It would certainly be an uphill climb to try and bring an action against the makers of the Pokémon game.
Can I sue a negligent Pokémon user if they cause me harm?
If you are injured by another person who is playing Pokémon, the claim is much simpler. Unsurprisingly, pedestrians (whether they are hunting imaginary creatures or not) have a duty of care to other road users or pedestrians, and if they breach that duty by not taking appropriate regard of safety and surroundings and cause another person a loss, then they are liable for damages. Household buildings and contents insurance often covers policy holders for damage if they accidentally injure someone. It is yet to be seen whether this will cover Pokémon related injuries, but if you are injured by someone you should always take any name, address and policy details. Of course, if the damage is serious, you should also contact the police.
A Russian bank, Sherbank, is offering customers free Pokémon insurance to cover them for harm they may cause whilst playing the game. A safety campaign entitled #Don'tCatchandDrive has sprung up on twitter. It's shocking that people might play whilst driving, but not beyond the realms of contemplation that a driver might just try and spin a 'Pokestop' whilst at a red light. No doubt car insurance companies might become alive to this very shortly – perhaps we can expect to see premiums increasing for anyone who has Pokémon Go installed on their phone.
Pokémon Go is a wonderful, community-building, fun game which is seeing people take to their feet and explore the world around them. It's been boldly hailed as a new dawn for augmented reality and gaming; but it may well herald a new era in personal injury litigation and insurance too. We are one week in: time will tell.