You may have noticed that recently people have been more transfixed by their smartphones than usual. However whilst the tablet devices were formerly the preserve of a warm, comfy sofa, thousands of people of all ages are now converging on parks and shopping centres alike with their eyes glued to the screens. This is the phenomenon created by the release of the new Pokémon game “Pokémon Go”.
Pokémon Go is the new viral app that puts a modern spin on the classic 90’s videogame. Since the reboot was launched by Niantic, which offers users the opportunity to search the real world for their favourite Pokémon characters, the app has been downloaded over 75 million times as of 25th July 2016. You can now walk to the shops and catch a live, albeit augmented reality, Pokémon at the same time.
However, stories are already emerging of accidents befalling these distracted Pokémon trainers. Whether it is the story of two men in San Diego that fell down a cliff or the teenager that was hit by a car whilst chasing Pokémon, it appears that the extra activity involved with the game has started to lead to injuries.
It is difficult to identify the cause of these accidents. Niantic makes clear to its users that they should be careful, including in their terms and conditions the following warning:
“be aware of your surroundings and play safely. You agree that your use of the App and play of the game is at your own risk, and it is your responsibility to maintain such health, liability, hazard, personal injury, medical, life, and other insurance policies as you deem reasonably necessary for any injuries that you may incur while using the Services.”
As such it is unlikely that a product liability claim will succeed against Niantic. There is a clear warning to users that they are responsible for their actions whilst playing the game and should take reasonable care to avoid sustaining an injury.
However, it is still a company’s responsibility to take an active approach when it comes to risk and continually update and warn their clients of potential injuries. It remains to be seen what Niantic’s response will be to future challenges this game presents.
Whilst it may be difficult to bring a product liability claim, this does not exclude a fellow user of Pokémon Go of being negligent. Pokémon ‘trainers’ have a duty to fellow members of the public to take reasonable care to avoid acts that could potentially cause injury. If a distracted driver playing Pokémon Go were to cause an accident whilst in pursuit of a rogue Pikachu, this would lead to a serious claim as the driver has not acted reasonably.