Pokémon Go Players at Risk of Liability

Your head is down, eyes glued to your avatar as it moves towards your next capture. The creature “Charmander” is a few virtual steps ahead and is sure to add value to your Pokémon collection.

In your excitement to reach the next level of the game, you don’t see the car in front of you stop short, causing you to rear end it.

In other Pokémon Go motor vehicle related incidents, a driver slammed his car into a tree while looking at the game. Car accidents aren’t the only incidents being reported as the game Pokémon Go has become a worldwide sensation.  There have been reports of injuries, trespassing, and exposure to unsafe conditions:

• Police in Fallon, Missouri arrested four teens for robbing 11 people after luring them in with Pokémon Go. Most of the victims were alone and oblivious to anything but their phone screens until they noticed the gun in their face.
• Police in Washington had to warn people not to play Pokémon near the police department late at night.
• Police in Australia had to remind players to “look up, away from your phone and both ways before crossing the street.”
• Two men stumbled off a cliff in California while absorbed in a game of Pokémon Go. They survived with moderate injuries.

As legal issues swirl, injuries are occurring, police are making arrests, and lawyers are questioning whose liable when these incidents occur and whose insurance pays.

If property damage occurs while gamers are trampling onto private property, a commercial general liability or business insurance policy may cover the damage or even the player’s homeowner’s insurance coverage may apply.   Homeowners could also face liability if someone trespasses into their yard and is injured.    Depending on the jurisdiction, a person who trespasses and is injured on private property can still sue for liability if a condition of the property is deemed unreasonable or unsafe.  The potential litigation of an injured trespasser may be covered by homeowner’s liability and umbrella policies.

In another case where a gamer illegally parked his car to catch a Pokémon the car was struck by a second vehicle.   There is certainly some liability on the illegally parked car, but the majority of fault would lie with the striking vehicle, and an adjuster would examine the damage just like any other parked car accident.

From a subrogation standpoint, insurers who may be required to pay claims related to Pokémon Go accidents may have a right of recovery against the manufacturer of the game, Niantic. The company could also be found liable under a general negligence claim filed by a homeowner, school, church, or museum that is damaged by players.   Although the manufacturer’s app requires users to acknowledge a liability disclaimer, it might not apply in certain situations. For example, if a player causes a car crash either by distracted walking or driving, the disclaimer may not extend to an injured third party.

There are some elements of the game that will create some insurance liability coverage issues because it encourages people to go into places to look for Pokémon, and in some cases this creates unsafe situations, trespassing, and negligence from being unaware of the current surroundings. As with any other game, Pokémon Go players are encouraged to play in a safe and sensible manner.