Personal Injury Lessons from Pokémon GO:
Fading Summer Fad with Lasting Legal Implications
If there was one phenomenon that defined the summer of 2016 it was Pokémon GO – the mobile app re-launch of a 1990s-era video game (and television) franchise that has become popular with Millennials. It also became popular with another less likely group for far different reasons: personal injury lawyers.
Pokémon GO is the latest smartphone gaming app to fall into the “augmented reality” category where elements of a virtual world are integrated with the real world, making for a unique hybrid location-based experience. Released by Niantic, Inc. on July 6, 2016, the game achieved unprecedented popularity at first, breaking download and revenue records, but then struggled in the months that followed. By September, the number of active users fell 36 percent, from 50.2 million to 32.4 million, even as revenue only dipped slightly and renewed interest surged around Halloween.
Regardless of whether or not Pokémon GO proves to be a fad or a permanent fixture of our digital lives, one thing is clear: for the legal community, the game has helped spark a rich discussion on personal injury law. As more augmented reality apps are released on iOS and Android devices, what safeguards are companies putting into place in these games to protect against unfounded lawsuits while also helping players exercise common sense and avoid bodily harm?
Squirtle Skirmishes: The Impact of Augmented Reality Injuries
Aside from the immense popularity of Pokémon GO, the second story of the “Summer of Pokémon” was the national and global uptick in personal injuries associated with careless game play. By being so engrossed in the game, some users became oblivious to the real world they were interacting with. Injuries widely reported included falls, sprains and bone fractures, car accidents, and being hit by traffic. Snakebites and even a possible shooting death also made the news.
Of course, game developers aren’t dimwits. They know full well that when you supercharge an already addictive, sensory-consuming device like a smartphone with a video game designed for Millennials, heavily pulling on the generation’s nostalgia heartstrings for its own receding youth, accidents and injuries would be common. Not surprisingly, the game comes with a comprehensive disclaimer in its terms of service:
“The Pokémon Company (“TPC”) and TPCI disclaim all liability related to any property damage, personal injury or death that may occur during your use of our Services, including any claims based on the violation of any applicable, law, rule or, regulation on your alleged negligence or other tort liability.”
Game developers buttress this comprehensive warning by requesting players opt into an arbitration agreement. Nearly all players will not opt out of this simply because they won’t read the fine print. Or they won’t read it carefully enough to know the difference. Arbitration, for non-lawyers reading this post, is a form of alternative dispute resolution done outside the courts that carries with it a litany of advantages and disadvantages as related to the consumer, or in this case, the player.
So while it’s likely that future gaming companies and other augmented reality app developers will look back at the summer of Pokémon and the game’s ironclad legal protections and follow its lead, that doesn’t mean a legitimate personal injury case isn’t possible. For players filing a personal injury claim, it comes down to this: proving negligence while also substantiating that that negligence can be compensated.
Proving compensable negligence requires four elements:
- Duty – That the defendant (i.e., game developer) owed the plaintiff (i.e., gamer) a legal obligation that the purchased good or service would not cause harm.
- Breach – That the defendant violated the above duty by deliberate action or inaction.
- Causation – That the plaintiff’s injuries were the direct result of the defendant’s breached duty.
- Damages – That the plaintiff was actually injured as a direct result of the negligence.
Common Sense AR PR
Before we go down the rabbit hole of personal injury legal jargon, it’s important to remember the need for personal responsibility. After all, many of the disclaimers game developers write are nothing more than codified common sense. That being said, if you’re a Pokémon GO player (or future AR gamer) and you nevertheless feel your injuries are the direct result of the negligence of a game developer, then by all means, contact a personal injury or general practice law firm and discuss the facts of the case.
Remember, though, that attorneys like to use the “reasonable person standard,” when determining liability. Stated simply, the reasonable person standard is a way of evaluating what a hypothetical sensible person would do under the same or similar circumstances being described.
Using this test, it’s clear that many injuries associated with Pokémon GO this summer would not meet the negligence standard. Playing the game while driving (like texting and Facetiming) is foolish. Playing the game after dark in dangerous or unfamiliar neighborhoods is questionable. And playing the game while crossing a road or highway is equally reckless.
While the summer of Pokémon GO has passed, it will be interesting to see what new augmented reality games are in the offing and how the legal issues these increasingly complex immersive apps unintentionally create, will be resolved.
Until then, play with a heads-up frame of mind – even if you’re looking down at your screen.