Principle Attorney
Pokémon GO gets users out into their neighborhood, exploring both the augmented reality and the real world around them. Each player is on the hunt for as many of the Pokémon characters as possible, and the creatures can pop up almost anywhere.
From a Rhydon hanging out on 16th Street to an Onyx visiting the camels at the zoo, Denver is no stranger to these creatures. The difference with these two, though, is that they are in public places. The trouble begins when they instead spawn on private property.
This has become problematic nationwide, with users trespassing onto private property to catch rare or elusive Pokémon. Property owners in New Jersey and Michigan both filed class-action lawsuits against the game developer due to this. In addition, users who attempt to play while driving and a variety of other incidents have raised a number of legal concerns about the game.
Two Class Action Lawsuits Filed Against Nintendo and Niantic
Released less than six months ago, Pokémon GO is already facing at least two class-action lawsuits because of users who trespass on private property. These suits could grow to include dozens — if not hundreds — of people who believe the game developers are encouraging users to trespass onto their property.
A federal lawsuit filed by Jeffrey Marder in summer 2016 alleges that there are Pokestops and spawning characters near or on his property, and that players cause a public nuisance and trespass in order to play the game. Marder lives in New Jersey, but filed the suit in California courts.
Husband and wife Scott Dodich and Jayme Gotts-Dodich, of Michigan, also filed a lawsuit in summer 2016 in hopes of holding Nintendo and Niantic liable for the behavior of those who come into their neighborhood to play the game at a local park. The family alleges that players trespass onto their lawn, cause property damage, look in their windows, and even yell obscenities at them.
Could a property owner be liable for a trespasser’s injuries?
Colorado’s premises liability law [Colo. Rev. Stat § 13-21-115] limits the situations when a property owner is responsible for a trespasser’s wellbeing. In the vast majority of cases, it would be difficult for a Pokémon GO player who suffers injuries while trespassing on private property to win a claim for damages against the property owner.
There are two questions the court will have to answer if one of these cases occurs in Colorado:
First, if the trespasser is a child, does the Pokestop, gym, or lure count as an attractive nuisance? If so, the property owner may need to prove they did everything possible to protect the child.
Second, there is legal precedent that allows a trespasser to hold the property owner liable for injuries if the property owner was aware of the potential for trespassing. For example, if a property owner sets up a lure on his/her property and fails to warn trespassers about an electric fence, s/he could potentially be responsible for any injuries trespassers sustain when they touch the fence.
Are Nintendo and Niantic liable for injuries that stem from playing Pokémon GO?
The two class action lawsuits both raise the question of whether the game’s developers are responsible for player’s actions. In this case, the plaintiffs are wanting to hold Nintendo and Niantic, Inc. liable for the damage done to their property.
Another similar concern stems from app users who suffer injuries while playing the game. Within days of the game’s release, two California men walked off of an ocean bluff while engrossed in the augmented reality. Others suffered injuries after walking out in front of traffic, running into trees, and crashing bicycles. If serious injuries occur in this type of accident, can the user win in a claim against Nintendo and Niantic? The developers disclaim any and all liability in the terms of use players agree to before logging into the game, but just how well this protects the companies remains to be seen.
Driving While Playing Continues to Be a Concern
Developers designed Pokémon GO to work best when players are walking, but that does not stop some users from trying to catch as many creatures as possible while behind the wheel. There are reports attributing dozens of car accidents to the augmented reality game.
Smartphone distractions are nothing new for Colorado drivers. In fact, according to the Colorado Department of Transportation, there were almost 6,000 crashes caused by cell phones between 2012 and 2015. More than 1,800 of these accidents occurred in 2015 alone. Almost 70 people died on Colorado roads in distracted driving crashes in 2015. Experts worry this number will be much higher due to the addition of Pokémon GO in 2016.
Law Offices of Dianne Sawaya, LLC, Your Denver Car Accident Attorneys
If you suffered injuries in a Denver area car accident and believe a distracted driver caused the crash, you may be eligible for compensation to cover your medical bills, lost wages, and more.
Call the Law Offices of Dianne Sawaya, LLC today at 303-758-4777 to schedule your free case evaluation.