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Aug. 17 — Can Pokémon Go and product liability exist in the same reality?
Pokémon Go, developed by Niantic Inc. with input from Nintendo Co., reportedly has been downloaded more than 100 million times.
Pokémon Go uses GPS and a smart phone camera. Players find, catch, train and battle creatures called Pokémon (pocket monsters) that appear through augmented reality on device screens as if they are present in the real world.
The game has drawn praise for getting people off the couch and into their communities.
But a rash of injuries and criminal activity has ensued, inevitably leading some to ponder whether the game developers can be held liable to players or third parties.
“It's an invitation to mayhem,” Steven Teppler of The Abbott Law Group in Jacksonville, Fla., told Bloomberg BNA.
Pokémon Go is a “scavenger hunt” encouraging people to go to “an unsupervised open area” where the risks can't all be accounted for, said Teppler, whose firm is investigating potential liability in cases where technology results in injury.
But some product liability defense attorneys say ordinary judgment and common sense still rule. They say any risks of play should be obvious.
And they point to myriad warnings that show up on phone screens when players turn on the app.
Niantic didn't respond to a media inquiry seeking comment.
Players who tumble down a cliff, walk into trees, dart into traffic or otherwise hurt themselves while finding Pokémon may have a tough time suing Niantic or Nintendo in court, in part because of “click-wrap” terms of service that include a forced arbitration clause and class action ban, attorneys say.
Users have 30 days from the download to send back an e-mail opting out of the mandatory individual arbitration. Those who would do so, however, are few—rather like rare Pokémon, attorneys say.
But friends who play along with subscribers, as well as third parties—for example, people hit by distracted drivers—aren't bound by the arbitration clause, some attorneys say.
And Teppler raised the scenario of a player walking around with a child: “Is the child covered by the arbitration provision? I don't think so,” he said.
People who have suffered injuries, who aren't part of the purchasing group, or who aren't bound by an arbitration clause, “will pretty much sue along the same lines as any mass tort,” Teppler said.
Max Kennerly, who represents product liability plaintiffs, said a third-party case would likely be the first real test of Pokémon Go's liability for personal injuries.
A non-user would have the benefit of avoiding issues involving the user's own negligence, Kennerly, of Kennerly Loutey LLC in Philadelphia, said.
Which brings us to warnings.
Some Pokémon Go pop-up screens caution users to be alert and aware of their surroundings.
Recent updates have gotten more emphatic.
One warning advises users not to enter dangerous areas while playing Pokémon Go. Another feature tells would-be player/drivers, “You’re moving too fast!” The game is disabled unless a button that says “I'm a passenger” is clicked.
Warnings appear every time the app is opened.
The repeated cautions spark lively commentary on social media.
Some players praise this feature as a good reminder to be careful out there.
Others take umbrage at having their common sense insulted, and say Niantic is over-nagging to cover itself from lawsuits.
Indeed, Niantic has been hit with suits, although not product liability actions. Also named in the suits were Nintendo Co. and Pokémon Co.
One suit alleges trespassing players have made a Michigan couple's community unsafe. In another, a New Jersey homeowner alleges players are coming uninvited to his yard in search of their quarry.
Among the new warnings? Do not play and trespass.
Defense attorney Alexis Kellert, an associate in the Products Liability group at Weil, Gotshal & Manges in New York, said a warning claim would have a difficult time succeeding given that the Pokémon Go warnings appear to be displayed every time the app is opened.
This would increase the frequency of warnings and the number of users who see them, she said.
Teppler, however, questioned the effectiveness of the warnings.
For example, he said, how would a player know the game has taken him onto private property, or to a potentially dangerous area, having not been there before.
“You're not playing in the virtual world, you're playing in the physical world,” Teppler said. That's a bit “harder to fathom,” for most people, he said.
Whether there is a duty to warn of product risks depends on the context of the particular product.
The publicity associated with Pokémon Go makes the debate about the existence and the scope of that duty more topical, Philip Quaranta of Wilson, Elser in New York told Bloomberg BNA.
People are looking at Pokémon Go for the idea of how augmented reality apps will be treated, he said.
“As a defense lawyer, I look at this as an opportunity for defendants to shape the law across the country regarding warnings,” Quaranta said. “There is no duty to warn against a danger that can be immediately sensed by the average person.”
From a defense point of view, the Pokémon Go warnings are “state of the art and very impressive,” said Quaranta, who has played the game.
“Someone is going to be hard-pressed to say he didn't understand the current warning or that further information would have altered his conduct.”
Quaranta also said people bring their life experiences to bear in taking on activities, even if the activity doesn't specifically caution about a particular hazard.
But Teppler stressed that AR, and Pokémon Go in particular, is new and different.
Real-world lessons don't necessarily translate to the virtual, he said.
“So in your whole life experience, when have you ever played a situation where you had melded both the virtual world and the real world, and conducted your real world activities based on what's happening in your virtual environment?” he asked.
The risk factors in the real world “far outstrip anything that you can build in, into your logic, in a virtual world,” he said.
The game design also gives rise to a dialogue about potential liability for the app maker.
Kennerly said in other augmented reality situations, like heads-up displays in cars and airplanes, “you can see that careful attention was paid towards ensuring that the user isn't distracted from their environment.”
Pokémon Go is a little bit different, he said: “It's an augmented reality device that keeps the user's attention focused entirely on their phone. Ever since smartphones became common, so, too, did accidents involving people distracted by their phones.”
Kennerly added, “This sort of game looks like a perfect setup for causing more of those types of accidents. Whether or not that's the maker's responsibility is an issue that may need to be determined case-by-case.”
And Teppler said Pokémon Go requires multitasking, “which is almost impossible to do.”
You're already looking at one place, he said. “To play the game you have to be crossing the street looking at your phone.”
He added, “You're actually in the game. You are acting really within the universe inside the game, when you also have to be aware as a person outside the game of your surroundings.”
Quaranta said he could envision a scenario where an expert such as a psychologist said the level of concentration required for the game is distracting.
But he said, “Those things are open and obvious; there is a school of thought that people who make those distracted allegations should be responsible for their own actions.”
“Whether those are the majority of people, that is for a court to decide,” he said.
“My own point of view is, I don't think the level of distraction is an excuse to set aside common sense and ordinary judgment.”
However, he said, “There's going to be a diametric point of view.”
On one side, “you have the principles of responsibility for individual conduct; the other is, whether this game has somehow caused you to be distracted to the extent that you need to be warned or the game needs to be redesigned,” Quaranta said.
“That is an evolution of classic product liability principles to the app economy.”
What about when a distracted user, let's say a driver, hurts someone else? What then?
Whether there was duty owed to the plaintiff is the important threshold question, Kellert said.
Defense attorney Theodore Tsekerides, a partner in Weil's product liability group, said generally good arguments exist that a software app developer's duty should not extend to remote third parties such as people who say they were hurt by someone playing Pokémon Go while driving.
Since the existence of a duty is a question of law, a case would be dismissed if a judge agreed no duty was owed, he said.
Causation can pose another problem for plaintiffs.
Quaranta said, “That's a question where the individual responsibility of the car driver needs to be evaluated.”
A third party as an innocent victim “is an emotional depiction of the issue but I don't think that sets aside the analysis that people are responsible for their own actions,” he said.
Should an app developer foresee that someone would play the game while driving?
It's not necessarily foreseeable that people will “set aside their common judgment, disregard the training they went through then they got a license,” Quaranta said. “A lot of layers of misuse have to come together at the same time.”
However, he said courts could take different views on whether the app maker has liability.
But Teppler said, “You would have two defendants.”
“It's a high-risk activity. It invites high-risk behavior, and something that invites high-risk behavior should be more strictly construed against the offeror of that high-risk activity,” he said.
To contact the reporter on this story: Julie A. Steinberg in Washington at firstname.lastname@example.org
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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