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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Although they know they shouldn't, drivers succumb to the lure of operating their cell phones while simultaneously operating a vehicle.

Cell phones have become ubiquitous.  No longer is it good enough to have a cell phone; the thing is plastered to our faces all hours of the day and night, especially when we are driving.

Our culture now demands immediate connectivity, especially among the youth.  In business, the standard is instant availability around the clock.  This is how teenagers live their lives; this is how business gets done.

The problem arises when physics gets in the mix on the highways and byways of our nation.  People that multitask while driving, especially when manipulating the screen of a smart phone, are several times more likely to cause a high-impact collision even than, say, a drunk driver.

The Statistics.  81% of licensed drivers recently surveyed by the insurance industry lobby admitted to using their cell phones while operating a vehicle.  Consistent estimates developed in a series of studies since 1996 conclude that drivers using cell phones are four times more likely to cause a car crash.

According to estimates provided by the National Safety Council, published by the NYT, of the 5.6 million car crashes that occurred in 2012, as many as 1.48 million of those crashes -26%- involved  a cell phone based distraction.

The Technology.   Telematics is an interdisciplinary field at the intersection of telecommunication, vehicular technology, and computer science designed to control, measure and supply advanced function to vehicles on the move.  Recently, start-ups, insurance companies, and at least one mobile provider -Sprint- have invested in the development of technology that blocks the use of a driver's cell phone.

The cell phone manufacturing industry lobby, with the onset of "unlimited' data plans, have begun to shift their opposition to national and state safety regulations on the use of cell phones by car drivers.  Now, Sprint has taken the lead to develop the technology designed to take the choice out of drivers' hands; if you are driving, you cell phone becomes inoperable.

At the forefront of this developing technology comes an American start-up company -Katasi- that has designed a small black box  -about the six of a matchbox- affixed to the steering column of a vehicle that prevents the driver's cell phone from receiving or sending calls or messages.  Apparently, the telematic design of this device allows passengers to continue to operate their phones, while only the driver's cell is disabled.

The problem, however, is that at five years in, the company is no longer a "start-up", and its product still sits on the sidelines because the technology has not been adopted by the big boys: the insurance industry and the cell phone carriers.

Legal Liability.  One of the factors that has operated to limit the adoption of this technology is the concern for legal liability.  Companies are worried that if one stray text breaks through, and the driver causes a crash, the manufacturer will be on the hook for unknown millions.

While legal experts -mostly law professors and not product liability lawyers- conclude such concerns are overblown given the "do-good" nature of the device, the technology has yet to go on-line with a serious manufacturer.

If it becomes an industry standard, i.e. affixed to every car sold in the United States, the revenue plan is that drivers will have to pay approximately $5 per month to keep the device activated.  Law will need to come into play before that happens.

We here at the Law Blogger ask: if the technology is present, can those laws compelling vehicular integration of the device be too far away?  We certainly hope not, given the statistics cited above.

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In 1977, a fire burned through a popular nightclub in Southgate, Kentucky, killing 165 people and horribly scarring 200 more.  A young lawyer, Stanley Chesley, filed a plaintiffs' lawsuit on behalf of the victims in that fire, advancing a novel theory of liability.

Rather than simply suing the Beverly Hills Supper Club for the insurance policy limits, Chesley fashioned a suit that included more than 1000 defendants; the entire aluminum electrical wire industry.  The tactic paid handsomely; over $50 million.

Thanks to this and other similar lawsuits, the mass-tort era was born.  But Chesley did not stop with the nightclub case.  Incredibily, he was involved in several other big hits: breast implant litigation, the tobacco settlement, drug manufacturing cases, even the Pan Am crash over Lockerbie Scotland.  The sky was indeed the limit.

Chesley, licensed in Ohio and Kentucky, makes our own Geoffrey Fieger look like a first year law student.  And like Feiger, Chesley is getting tangled-up in disciplinary actions with the state bar where he practices.

The problem arose for Chesley when, in 1998, he allegedly muscled his way into the Fen-Phen drug product litigation in Kentucky.  The Kentucky Bar Association investigated allegations that the attorneys involved in the case were misrepresenting the parameters of the settlement to their clients.  Eventually, two of the lawyers involved went to prison and the judge on the case was forced off the Boone County Circuit Court bench.

The Kentucky Bar Association, having concluded a series of hearings, recommended this week that Chesley get disbarred and that he pay back more than $7.5 million in fees that it says were not within the scope of his fee agreement and therefore belongs to Chesney's Fen-Phen clients.

Allegedly, Chesney paid himself a multi-million dollar bonus after sweetening the lawyer fee portion of the drug settlement in an off-the-record meeting with the disgraced judge who presided over the case at the time.

The lawyer is appealing the recommendation to the Kentucky Supreme Court.  Looks like whatever the outcome, greed apparently tainted a lot of talented legal professionals in the underlying product liability case.

Sad that this is a tale that is oft re-told in our time.

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