Pokémon GO, Trespass and Liability
It is impossible to miss the phenomenon that is Pokémon GO. The augmented reality app featuring Nintendo’s digital critters roaming real neighborhoods and locals has taken the mobile game world by storm, and currently boasts more daily users than Twitter.
But did you consider that this game might actually expose your small business to liability?
The game, which is still in an early beta phase, uses GPS, the smartphone’s camera and the pedometer to track player’s locations as they seek out pokémon hidden throughout the physical world. The phone alerts you to nearby pokémon and you need to physically go to a place in order for the creature to appear. Then, using the smartphone’s camera, the game produces a pokémon that appears to be in the same physical location as the player, who will attempt to capture the creature.
Assuming you are not one of the many, many players of the game, you have no doubt seen lots of people wandering around with their noses in their phones – even more so than usual, in fact. They are difficult to miss.
I say difficult to miss because I have personally observed a kid, probably around 12, twice walk into traffic while looking at his phone in hot pursuit of some digital critter. And I have seen a video of a guy in Baltimore slamming into a parked police car because he was actually playing the game while driving! And in Florida a property owner opened fire on two teens prowling around his property because he believed they were planning to rob him. Fortunately, no one was injured in these incidents, but the reality is, an injury is bound to occur at some point. No doubt there are liability concerns for the game creators, though they try to mitigate against these with a robust Terms of Service.
Then there is the issue of trespass. The game turns various real-world landmarks into pokéstops and gyms, which happen to foster the generation of the digital creatures. Not surprisingly, these in-game stops are attractive to players of the game. As a small business owner, having a pokéstop at your location could be advantageous if you are trying to attract a certain demographic to your establishment. But if you are not interested in having a lot of young people tramping around your property, you might be less than thrilled to learn there is a pokéstop or gym on or near your property. And, of course, you have to worry about the legal implications if someone was to get injured on your property.
Now, if someone enters your property without your permission, that is called trespass. A trespass is a physical entry onto another’s land without justification, privilege, or the owner’s permission. The entry can be intentional, reckless, or a negligent entry. Trespass is essentially all about interfering with someone’s exclusive possession of property.
It is worth noting that in New York, where I practice, a possessor of property owes a reasonable duty of care to a trespasser to inspect, warn, or keep the land in a reasonably safe condition and to carry on activities so as not to endanger a trespasser.
Then we have the doctrine of “attractive nuisance” which treats trespassing children as invitees, and therefore holds the possessor liable for any injuries they sustain, even though they are trespassers on the land.
There is an “attractive nuisance” when:
- The possessor knew or should have known that an artificial condition posed an unreasonable risk of death or serious injury to trespassing children,
- The risk of harm was not likely to be recognized by children,
- The place where the danger exists is one that the possessor knows or has reason to know that children are likely to trespass
- The financial burden of correcting the danger was outweighed by the risk of harm to trespassing children and
- The possessor breached its duty by failing to use reasonable care to eliminate or reduce the danger to trespassing children.
Attractive nuisance liability does not extend to those conditions and risks that children should have realized and appreciated.
Now in New York, the courts do not recognize the attractive nuisance doctrine, but essentially it applies based on the doctrine of foreseeability of harm and the duty of reasonable care to make one’s property safe, as mentioned above. In other jurisdictions that do not impose those duties to trespassers in general, the attractive nuisance doctrine may apply.
To give a simple example, a pool is generally considered an attractive nuisance. Kids are drawn to pools, and absent taking reasonable precautions, if an injury occurs the possessor would still be liable – even if the kid was trespassing.
This leaves us with a big question – if a kid enters private property in hot pursuit of a pokémon, is the possessor of that property going to be liable for any injury that kid sustains? Does Pokemon GO create attractive nuisances? Can a digital critter in an Augmented Reality game even be an attractive nuisance, and where exactly does that nuisance exist in space? How can a reasonable possessor take steps to correct the danger, as they are not the source of the attractive nuisance and can do nothing to stop it? Would Niantic, Nintendo and the Pokémon Company indemnify a property owner who was found liable under the attractive nuisance doctrine for an injury to a trespassing child? Clearly there are many questions yet to be resolved.
So while we wait on judges and legislators to clear up some of these issues, it might be worth looking into whether or not you, as a small business owner, have a pokéstop on your property. If you do, keep in mind your reasonable duty of care to a trespasser to inspect, warn, or keep the land in a reasonably safe condition and to carry on activities so as not to endanger a trespasser, as you may have a digital attractive nuisance at your shop. Correct any dangerous conditions, post signs warning about trespassing, and fence off hazardous areas. Take proactive steps to keep your property safe to mitigate against liability exposure. It is also wise to carry general liability insurance on the premises.
On the other hand, if you are interested in getting more pedestrian traffic to your storefront, a pokéstop might be a bit of good luck. Activate a “Lure Module” and just wait for all the kids and 20 somethings to start showing up in search of that elusive Pikachu and sell them a few widgets while they are there. Gotta catch ‘em all, as they say.
Tim LeFebvre, Esq.