The new game Pokémon Go has been a big hit around the offices of Martinson and Beason; Pokémon trainers from across the city have gathered around Huntsville’s Big Spring Park and Courthouse Square to catch ‘em all.
But unlike the safe land where the classic Pokémon games took place, the real world is full of dangers and possible injuries. So what happens if you trip and fall while catching ‘em all, or if you get hit by a truck chasing a Psyduck? Incidents have already started happening: a Pokémon trainer was robbed at gunpoint while playing the game, a driver crashed into a police car while distracted by Pokémon, and two players even walked off a 90-foot cliff. So could any of these people, or anyone else injured while playing the game, sue Nintendo, Niantic, or the Pokémon Company, all of whom are part owners?
The answer is probably not. We’ll go into some of the top reasons why:
1) Niantic warned users of the potential dangers.
In negligence and product liability cases, a manufacturer can argue be held liable for a “failure to warn,” leaving out adequate warnings that might inform consumers on the risks of a product. This argument would likely not hold water in a lawsuit against Pokémon Go; the game’s extensive terms of service, to which all users must agree, read, in part, “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.” While one could argue against the validity of such a liability disclaimer, a lawyer for Niantic could certainly argue that the injured party had been fairly warned of the risks.
2) The injured party is likely partially responsible for their injuries.
At least in Alabama, this matters a lot. Alabama follows the doctrine of pure contributory negligence in liability cases; this means that if a victim is even 1% at fault in an accident, they can be denied compensation entirely. For example, if a pedestrian were to negligently walk out into the street and was hit by a negligent driver, they could be barred from receiving compensation. Most other states follow the doctrine of comparative negligence, which diminishes the plaintiff’s recovery to the extent they contributed to their own harm; if the court found them 10% at fault in an accident, their recovery would be reduced as such.
It’s easy to see how this applies to Pokémon Go. If someone is looking at the game instead of where they are going, they are likely partially negligent; they should have been looking where they were going. This alone could make Niantic completely absolved from liability.
The exception for this is if an innocent third party were injured. If a pedestrian who was following the law were hit by a driver distracted by a Pokémon, they would not for this reason, be barred from recovery if they chose to sue Niantic. More on this particular case below.
3) In most cases, a complaint against Pokémon Go cannot even be taken to court.
As part of Pokémon Go’s terms of service, a player agrees to settle any disagreement with Niantic through arbitration, not through trial-by-jury, unless they opt-out by mail or email within thirty days of first accepting the terms of service. Arbitration is a process of settling disputes through an appointed arbitrator, who hears both sides and makes a decision outside of the courts.
In addition, a player who did not opt-out of those terms cannot participate in a class action lawsuit, where multiple complaints over the same issue are consolidated into the same case; class action lawsuits are important because they allow companies who commit many wrong acts that are too small to individually litigate (like a tuna company putting too little fish in each can) to be held accountable by a large number of wronged parties acting collectively. In the arbitration section of the terms, players aren’t allowed to consolidate arbitration claims, so the possibility of a de facto class action lawsuit through an arbitrator is prevented.
However, this is not to say an arbitrator would not award appropriate damages to an injured party; it simply means that decision is in an arbitrator’s hands, not up to a jury.
To sum up, a case against Pokémon Go in Alabama faces two big setbacks: the doctrine of pure contributory negligence, and the arbitration agreement. However, in the case of an injured innocent third party, neither of those two setbacks apply. Although a third party would have a lot of ground to cover in their lawsuit against Niantic, their argument would likely hold some water. We’ll keep track of the lawsuits that are sure to come from these Pokémon Go craze.