Pokemon Go reminds users to pay attention. Is that warning enough? (Source: YouTube)

Pokemon Go reminds users to pay attention. Is that warning enough? (Source: YouTube)

According to the Washington Post of July 11, 2016, although Pokemon Go (the latest summertime craze made by Niantic, Nintendo, and the Pokemon Company) was released just five days ago, it has already taken the country by storm. This smartphone app allows players to capture little monsters (Pokemon) in real-world locations: they appear on the player’s smartphone screen, through the camera, as he or she walks through the neighborhood. The app creates the illusion that the monsters are right in front of the player. The game quickly shot to the top of the charts for Apple’s free apps; and it has gathered at least 100,000 downloads on Google’s Play store in just a few days.

Unfortunately, the game has also led to a number of reported injuries suffered by inattentive players. Careless players, overly focused on the game, have already tripped and fallen after encountering sidewalk or ground hazards. The Pokemon Go app includes a warning in the loading screen asking players to pay attention to their surroundings, but some people haven’t gotten the message.

Perhaps the greatest potential hazard to players and others arises from something that should be avoided at all costs: driving while the player is focused on the game, looking for Pokemon. Hypothetically, if an over-involved driver caused injuries to another driver or a pedestrian, could this lead to a successful tort claim, based on negligence, against Pokemon Go’s creators? Like so many answers to legal questions, the answer is a resounding “maybe.” First, it should be noted that the potential duty of the game’s creator, and liability arising from it, will vary from state to state, depending upon applicable law. As illustrative, we look below at the issue as hypothetically arising under California law.

One pre-condition to potential tort liability, and its consideration by a jury, is the existence of a legal duty; absent a finding of duty, an injured party cannot recover for the negligence of another. In California, duty is a question of law for the court to decide: one that depends on public policy considerations, as they arise on a case by case basis. The court considers, under the unique facts of the case, whether a particular plaintiff is entitled to legal protection from the acts of a particular defendant. The factors considered by the courts are the following: (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant’s conduct and the injury suffered, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and (7) the availability, cost, and prevalence of insurance for the risk involved.”

According to longstanding precedent, among these factors foreseeability of the risk is a primary consideration for the court to consider in establishing whether one (here, Pokemon Go’s creators) owes a legal duty to another (here, a plaintiff injured by a game player’s negligent driving). That injuries to the plaintiff are sustained as a result of someone else’s negligence – the game player’s – does not necessarily rule out the game creator’s potential legal liability to the injured party.

If the issue were to arise in California, there is indeed a longstanding California Supreme Court precedent that suggests that California courts might find a legal duty on the part of the game’s creators. The case is Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40; and, other than the nature of the technology at issue, the facts there have striking similarity to those of our hypothetical.

In Weirum, a rock radio station, directed largely to a teenage audience, conducted a contest which rewarded the first contestant to locate a disc jockey who was constantly on the move, via automobile, from location to location. Two minors driving in separate automobiles attempted to follow the disc jockey’s automobile to its next stop. In the course of their pursuit, one of the minors negligently forced a car off the highway, killing its sole occupant. In a suit filed by the surviving wife and children of the decedent, the jury rendered a verdict against the radio station. The court, and ultimately the California Supreme court, had to determine whether the radio station owed the decedent a legal duty of due care: only if it did could the station be legally liable to the decedent’s relatives for negligently breaching that duty; absent legal duty, the jury’s verdict awarding damages for the innocent party’s death would be nullified.

The Supreme Court’s opinion first summarizes the rules of the station’s game, noting the broadcast frenzy that evolved as the day went on: the disc jockey moved from place to place, while being chased – sometimes at high speed – by listeners seeking to catch up with him and win cash prizes. The court concluded at p. 47-48: “Here, reckless conduct by youthful contestants, stimulated by defendant’s broadcast, constituted the hazard to which decedent was exposed…. The issue here is civil accountability for the foreseeable results of a broadcast which created an undue risk of harm to decedent.”

The station argued that holding them responsible for the negligent acts of youthful listeners would cripple daily commerce, because those engaged in ordinary activities (for example, theatre enterprises with lines for a show, or sporting event sponsors) would be potentially liable for acts of members of the public over whom they had no control. But the court distinguished such ordinary activities from what was happening here (p. 48): “In such situations there is no attempt, as here, to generate a competitive pursuit on public streets, accelerated by repeated importuning by radio to be the very first to arrive at a particular destination. Manifestly the ‘spectacular’ bears little resemblance to daily commercial activities.” Ultimately in Weirum, the Supreme Court found the existence of a legal duty on the part of the radio station, and therefore upheld the jury’s award of damages arising from the station’s negligence, in favor of the decedent’s family.

A more recent case, McGarry v. Sax (2008) 158 Cal.App.4th 983, suggests a similar legal analysis, and the same potential outcome on the legal duty issue. There, a skateboard store had gathered a large crowd by advertising, on local media, that there would be a free “skateboard toss” to those that gathered at a noted time. The plaintiff was injured not by the toss itself, but by an overzealous participant who harmed him while the participant sought to get the free prize. Focusing on the principle that, as a prerequisite to legal duty, it is: “…the general character of the event that is required to be foreseeable,” and finding that injuries under these circumstances were indeed foreseeable, the court found that the store owed a legal duty of care to protect those present (including the injured plaintiff) from the foreseeable over-exuberant conduct of others seeking to grab prizes.

So, if presented in court in California, the issue might come down to this: Is Pokemon Go an “ordinary activity,” for which its creators bear no legal duty for the acts of excited, careless users? Or have the game’s creators instead set loose what the Supreme Court in Weirum called “a competitive pursuit on public streets,” the consequences of which a jury can consider as arising from the game creator’s legal duty to bystanders? Only time will tell how this issue will be resolved in California, and other jurisdictions; but legal precedent suggests that the greater the frenzy created by the app, the more likely might be a judicial finding that the creators do owe a legal duty of due care to injured parties.