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Lawyers Are Stoked for ‘Pokémon Go’ Cases

Know your rights, people

Ringer illustration
Ringer illustration

Thomas A. Larmore first heard about Pokémon Go a few weeks ago, when his 20-year-old son was suddenly enthralled by the game. The Las Vegas resident was happy that his son was out in the park or trawling the aisles of Walmart, as opposed to sitting in front of a computer screen. But he also wondered if chaos was about to break loose. So he decided to make a Craigslist ad.

“FUN IDEA, RIGHT?” the post begs, just below an image of a Sandshrew Photoshopped into nature. “You thought chasing imaginary monsters around the real world would be an exciting adventure? But you didn’t anticipate bumping your head into a tree, or falling into a hole and twisting your ankle, or getting run over by a moving car when you ran into the street to catch that Pokemon, did you? If you were injured while someone else was playing this game, you may be entitled to compensation from the people who came up with this idea but didn’t really think it through to it’s logical conclusion — that encouraging people to travel through a world full of hazards with their eyes glued to a cellphone screen was just — here’s the word: NEGLIGENT.”

It’s the online rendition of those low-production “have you been injured?” lawyer commercials, a clear ploy to drum up business at the expense of a wealthy company with a considerable user base. But the scenarios that Larmore imagined are not entirely implausible. Distracted players have been robbed, stabbed, and shot on Pokémon hunts. They have accidentally walked off cliffs and broken into zoos in pursuit of what I hope are not just lowly Zubats. Enough of these incidents have gone down that The Ringer now updates its Pokémon mayhem map daily.

Cheesy lawyer advertisements aside, Larmore has a point. Namely, that — loading-screen warnings aside — a company that makes an app that distracts users from their surroundings could be found legally negligent, and therefore responsible to pay for a person’s injury.

“It can be compared to the law of attractive nuisance,” Larmore told me in a phone interview. “If you put on your property something that attracts young people — like a trampoline — [and] you just leave it on your land and then kids come use it and get injured, then you’re liable for their injury.”

Lawyers for Pokémon Go developer Niantic, at the very least, seem acutely aware that someone may eventually try to sue them, given some of the legal language inserted in the Terms of Agreement that many users blindly accept before signing up for the game. An “arbitration notice” buried in the agreement says that unless you formally request otherwise, “disputes between you and Niantic will be resolved by binding individual arbitration, and you are waiving your right to trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.” That language doesn’t necessarily mean Larmore’s Craigslist ad is moot. As attorney and blogger Maxwell Kennerly recently wrote, Pokéheads can opt out of this clause by sending an email to Niantic within 30 days of downloading the game. Kennerly said the legal grounds for these incidents have only recently been explored in cases against other large tech companies, but that there’s likely a gray area for augmented-reality games such as Pokémon Go.

“Obviously Niantic and Nintendo think there’s a risk of them being sued and being held responsible for something, which is why they’ve put the Charizard of arbitration in front of you,” he wrote.

In the meantime, Larmore has endured some ribbing from his son and his friends, who read his ad and thought it was a joke. He’s still waiting for someone to respond, but is confident that Pokémon Go will create new legal precedents.

“Nothing like this has ever been tried before,” he said. “All I’m saying is, the law’s going to have to determine whether the social value of this game outweighs the possibility of injury.”