Yep, that Pokemon Go; its been trending in the news. From proponents: it's good because it gets the tech nerds, the "twitchers" among us, out and about burning calories. From detractors: it's bad because it places hoards of techies where they otherwise would not be, including private property, and presents a high level of distraction for drivers and pedestrians alike.

This cell phone app has swept the country, if not the globe, with over 10-million downloads and counting. It is an augmented reality game where players present themselves at pinpoint locations, usually but not always some form of local or significant landmark, in order to capture a wide variety of creatures familiar to those that have sampled the Pokemon wares.

Of course, the service agreement for the app attempts to disclaim liability for Niantic, the game's software developer, and Nintendo, which owns a one-third stake in the game, if a user is injured or laws are broken during play. Nintendo's stock has soared since the game's release in early July.

Pokemon Go is a free app that can be downloaded to your cell phone; a Google account is sufficient to get registered, select and customize an avatar. Then its all about using the bare-bones Google-style map -which does not label streets or other landmarks and only indicates true North- to locate PokeStops and to capture creatures like Pikachu, the long-serving ambassador for the Pokemon franchise.

The media has reported on more than one vehicle collision caused by a driver distracted by the game. Private property owners have complained, and one California couple has sued the producers of the game in federal court, for creating a nuisance on or near their property. The plaintiffs' theory of liability is that the game makers have intentionally embedded GPS coordinates near their home without their permission resulting in property damage, trespass and other disruptions to the quiet enjoyment of their property.

For their part, the game makers have developed a user agreement that warns players to obey laws, to maintain their own insurance, and to avoid inflicting "emotional distress" during play. The agreement also contains this warning:

To the extent permitted by applicable law, Niantic, The Pokemon Company 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 violation of any applicable law, rule, or regulation or your alleged negligence or other tort liability.

Considering the trend in courts throughout Michigan to uphold contracts as they are written, these terms may be difficult to overcome.

Participation in the game causing injury to a player also raises issues of comparative fault. If a player is injured by a driver, for example, while playing the game, the driver's insurance company can assert that the cause of the pedestrian's injury was due, in part, to the distraction of the augmented reality game.

As the popularity of the game increases along with the enthusiasm of the players, the lawsuits cannot be far behind. We here at the Law Blogger plan to keep an eye on the situation.

Post #554

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