No, Niantic Labs and Nintendo are not liable if you break your neck playing Pokémon GO.

Photo credit: stevepb, Pixabay

Photo credit: stevepb, Pixabay

The Pokémon GO phenomenon has taken the world by storm and with the onset of Pokémania we’ve seen a rash of Pokémon-related mishaps.

Here’s a laundry list of events, some funny and some tragic, that have transpired because people were too busy capturing Pokémon to pay attention to their surroundings:

And that list is just a small sampling of the extreme negligence and outright stupidity we’ve seen since the Pokémon GO craze began just a couple of weeks ago.

Since then, several people have asked me whether Nintendo will be liable for these kinds of events. My very short answer is no, since it’s actually Niantic Labs, not Nintendo, that’s behind Pokémon GO. My slightly longer (but still short) answer is this: people need to watch where they’re going, pay attention while driving, and avoid dark, scary alleys or parks in the middle of the night.

Do I really have to say that?

If you cross the street without looking up from your phone and get hit by a car, it was not carelessness on the part of Pokémon GO developers that caused your injury, it was your carelessness.

I know that Pokémon GO has inspired people to explore their cities and, in many instances, talk to people they’d never otherwise engage with. All of that is fantastic, but none of it should be an excuse to throw away common sense. You are responsible for your own safety (and that of your minor children who play the game). You are responsible for any damage you cause to people or property while distracted by the game.

While you are not responsible for the criminal conduct of others, you should pay attention to your years of experience and the advice your parents gave you about avoiding dangerous people, places, and situations. And no, Nintendo is not responsible for the actions of opportunistic thieves, thugs, and other miscreants who target distracted players. There is some duty of care on the part of businesses, as I explain in this post on Mark Schaefer’s blog, but that doesn’t mean you don’t need to watch where you’re going. A business owner should fix any known dangers and warn people as they enter the premises if there’s anything that might catch a distracted Pokémon trainer unaware.

Nonetheness, there’s a very good chance that the money you might collect in a lawsuit resulting from a Pokémon induced slip and fall would be reduced by your own negligence in failing to watch your step. In some states, this “contributory negligence” might even cause you to lose the lawsuit altogether. But all of this is between you and the business owner: Niantic Labs has no dog in that fight. (Or Growlithe, if you will.)

Think about it: disruptive technology has led to stupid, careless behavior before. People die taking daring selfiesA baby drowned in the pool while his mother was on Twitter. People routinely walk around while staring at their phones (texting, listening to music, navigating…whatever). The statistics on car accidents caused by people texting and driving are mindblowing.

My-Pokemon

None of these is worth a head injury!

Even in the 1980s, some people called the Walkman a nuisance. (In fairness, wearing headphones does triple the chance of an accident).

So, no, Nintendo is not liable for damages that may arise from gamers’ own extreme carelessness while playing Pokémon GO. If that makes you want to switch back to playing Words with Friends in the safety of your home office, maybe that’s not a bad thing.

And remember: capturing Pikachu is not worth sustaining a head injury or worse, so pay attention to your surroundings, supervise children playing the game outdoors, and don’t visit PokéStops in places you’d otherwise avoid due to safety concerns. Pokémon GO does not magically make an unsafe area safe. So, if you want to be the very best like no one was before, go for it. Just be careful out there!

 

/Begin mandatory disclaimer/ This post and any articles linked from this post are not legal advice and are not intended as legal advice. All posts on this site are intended to provide only general, non-specific legal information. This blog does not create any attorney-client relationship, and is not a solicitation. /End mandatory disclaimer/

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