“Gotta catch ‘em all” is Pokemon Go’s catch phrase, but risk managers are rushing to “catch” all the potential liabilities that this virtual game is creating. From trespassing to personal injury, privacy and compensation issues, the Pokemon Go craze has opened a can of worms that may take months to settle.
Developed by Niantic Inc. and Nintendo Co. Ltd., the augmented reality game is free to play and encourages players to catch Pokemon in “gyms.” As part of a quest to catch all creatures they can, players are wandering onto private property, not paying attention to where they are walking and even playing while driving. Numerous reports have emerged of inattentive players injuring themselves and distracted drivers crashing their vehicles all in the pursuit of Pokemon monsters.
Twenty-eight-year-old Seven Cary was Pokemon Go’s first accident victim. Cary crashed his vehicle into a tree while chasing after a rare creature on the app, breaking his ankle and cutting his legs.
Some businesses have cashed in on the phenomenon, dropping “lures” and transforming their establishment into a Pokestop or Gym to attract players looking for rare or interesting Pokemon.
But these businesses also face potentially serious liability issues.
“Businesses, particularly small businesses, are facing potential liability, as players can wander into facilities where they may injure themselves,” according to a recent post from a law firm in Albany, New York.
Some players are chasing Pokemon with no regard to where they are walking or driving, leading to injuries that may put businesses at risk.
In one report, a player was chasing a Pokemon creature, and nearly fell into a grain elevator. In another case, an employee was leaning out a drive-thru window to get better reception, which could have led to an injury.
While some businesses made the decision to drop lures in hopes of attracting rare Pokemon and new customers, others were designated as a training gym without their consent by the app without the owner’s permission. As a result, some establishments are receiving unwanted visitors or having to deal with trespassers.
Now that these liability issues are being brought to light, legal experts are recommending that businesses implement new policies to address potential complications caused by the craze. Such policies would serve as evidence that the businesses considered the risks and took steps to try and prevent them. These policies would also serve as protection.
Experts also say that businesses should alert their security teams to direct participants wandering into unauthorized areas outdoors.
Businesses may also be covered under commercial general liability insurance or business practice insurance.
But what about the app’s developers? Could they be held liable as well? Maybe, according to attorneys.
Niantic Labs may be held liable under a general negligence claim filed by a church, homeowner, school or museum if damages occur while players are chasing Pokemon.
The company’s end-user license agreement ensures that all players agree to waive their right to a class action lawsuit or jury trial if something goes awry. But bystanders who have not agreed to the terms of the end-user license agreement or even played the game may potentially file suit against the developers.
As for homeowners, they aren’t off the hook either. If a player wanders onto private property and injures themselves, the homeowner may be held liable.