Pokémon GO, the augmented reality game that allows users (“Trainers”) to catch and train virtual monsters in a variety of real life locations via their mobile phones, has taken the world by storm– including some of us here at Barrett, Fasig & Brooks.
But can hunting virtual monsters also have real life legal implications?
Don’t get me wrong. I think Pokémon GO is GREAT. It has gotten people out of their houses and discovering their communities in ways they maybe haven’t ever before, meeting up and making friends in the real world. It’s getting us outside and exercising. Go visit your local park– you never seen them as packed as they have been since the launch of this app.
I don’t mean to be a concern troll or a killjoy, but the personal injury attorney side of my brain that never really gets turned off thinks about these things.
Like, driving. Obviously, hunting Pokémon while driving is a bad idea. It is just as distracting, if not more so, than texting or any other kind of handheld cell phone use. Nevertheless, it is tempting, since the app rewards you for moving from real world location to real world location in the search for rare Pokémon and useful items. But do not do this. You are only setting yourself up for an accident, which could be not only embarrassing but physically, emotionally, and financially devastating. You’re not going to feel so good about finally catching that Vaporeon if it comes at the expense of a person’s life or health. And the fact that the app tracks your location and activity means you’re not likely to get away with it.
Even Pokémon Trainers on foot need to be careful of traffic and other real world dangers. If you get hit by a car because you stop suddenly in the middle of the road or dart out into traffic to catch that Psyduck that’s been eluding you, not only could you be seriously injured, but it’d be hard to argue that those were the actions of a reasonably careful person if the case went to court. Additionally, all typical safety precautions about walking alone and/or at night also apply when hunting Pokémon, especially if your training takes you to an unfamiliar part of town.
And what about Premises Liability? Going onto private property without authorization is trespassing, even if you’re tracking a Pokémon. And what about Pokéstops and Gyms that are only accessible from inside businesses? Needless to say, if the business is closed in real life, its virtual counterparts are also closed to you.
On the flip side, if you make your property available for Pokémon hunting, you may be opening yourself up to a greater degree of potential liability. If you invite people onto your property to hunt Pokémon in Florida, you likely owe them a duty to maintain the property in a reasonably safe condition and to warn them of any latent dangers on the property. (This is no different than the duty you would owe to any potential customer at your business or social guest in your home—but you might want to think twice before issuing any public calls for people to come Pokémon hunting in the spooky woods on your property—even if there is probably a Gastly back there.)
Needless to say, you should also try to avoid getting into any real world fights with anyone who snaked a Pokémon out from underneath you or beat you in a Gym battle. It’s not worth it.
Be careful out there, my Pokémon Trainers. Do as the app advises: “Remember to be alert at all times. Stay aware of your surroundings.” You can’t become a Pokémon Master if you get eaten by a Gyarados, but the real world consequences could be even more serious than that.
And remember: always catch Pokémon responsibly.