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Nintendo, liability issues and Pokémon GO

The app, Pokémon Go, has been wildly popular in its short existence. Some of the numbers are jaw-dropping: Nintendo’s stock has risen nearly 50 percent in the opening week, though it has dipped a little in the last week. It has surpassed Candy Crush as the most popular mobile game ever, and has already overtaken Twitter and Tinder in active users. And the age range is huge, from kids under 10 to adults in their 60s. But its intention as a fun interactive game which encourages users to get outside and catch all the Pokémon for themselves, is not without its problems. 

A quick look at the news will highlight a number of reports concerning illicit use of the app, robberies and even car accidents.

As always, when something new becomes a fad, there will be plenty of people who will be eager to take it down, so it’s important to remember that these stories are not common, and the majority of users love the game. But a pervasive question has popped up in legal circles, and that is: would Nintendo be held liable for injuries sustained while playing Pokémon Go?

VIDEO GAME INJURIES AND THE LEGAL SYSTEM

Believe it or not, something like this is far from without precedent. There has been a long-recorded history of video game players sustaining injuries; seizures, torn ligaments, broken bones and TV screens. Let's not get started on the amount of rage-related injuries directly resulting from Mario Kart. Nintendo is usually quick to react to these types of things: Most are aware of the warning on the start screen of any Wii game stating to secure the strap on the controller around your wrist. They remind people to take a break while playing, and they even gave away protective silicone covers for those Wii remotes, in the event that someone swings too wildly and cracks their friend over the head. 

Court action regarding video game injuries are reasonably common, not surprisingly involving the arcade staple, Dance Dance Revolution. In one example, two friends were playing Wii, and one was struck in the groin by his friend with the controller. A three-judge panel ruled in agreement with the insurance company that they don’t have to cover damages, because the action was deemed intentional. An unfortunate decision for the injured to be certain.

The most famous and controversial case against a video game company was filed by Linda Sanders, the widow of a teacher slain in the Columbine High School massacre, lodges a claim seeking $5 billion in damages against Acclaim Entertainment and a handful of other companies such as Capcom and Nintendo for America. The general thesis in the case was that video games and movies of a violent nature were directly liable for the shooter’s actions. 

The judge ruled that all of the 25 defendants named in the suit were not liable for a number of reasons. One was that there was superseding cause and that the actions of the shooter were unforeseeable purely based on their love of violent games and movies. The judge noted that the companies were not liable because, “the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.” Basically, the companies could not have possibly predicted that two unstable teenagers would commit such an unspeakable crime. The same general conclusion was reached in the case of Wilson v. Midway, which claimed that Mortal Kombat was to blame for a child fatally stabbing his friend in the chest.

WOULD NINTENDO BE LIABLE?

Bruce Raymond, Partner at Raymond Law Group LLC, believes that despite the precedent of lawsuits ruling in favor of video game makers, it’s actually difficult to tell whether Nintendo would be liable for any injuries sustained while playing Pokémon Go. 

'The company does a very good job of presenting warnings and disclaimers on their games, and it’s clear they’ve thought about this possibility,' says Raymond.

Raymond says the game developer has tried to preempt any question of a duty to warn by providing proper warnings in the game from the outset. Pokémon Go begins with a warning for users to stay alert during game play and their terms of reference include the following "Safe Play" disclaimer:

"During game play, please 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. . . To the extent permitted by applicable law, Niantic, The Pokémon Company ("TPC"), and TPCI disclaim all liability related to any property damage, personal injury, or death that may occur during your use of our Services, including any claims based on the violation of any applicable law, rule, or regulation or your alleged negligence or other tort liability."

But is it enough? 

Raymond wonders whether the warning provided is sufficient to convey the danger present in the use of this product. 

'Factors to be considered will be whether the warning was placed in proper prominence together with the obviousness of the danger. It is hard to imagine a court or jury finding that a warning presented at the start of game play instructing players to pay attention to their surroundings is not prominent enough, and although the warning does not specifically mention the dangers of walking into traffic or off of a cliff while playing Pokémon Go, it would seem that the dangers of walking or driving while looking at a screen should be properly obvious without a specific warning,' he says.

Perhaps a better question would be whether an insurance company would cover any of these injuries if a claim was filed. Raymond believes there is no easy answer to this, indicating it will largely depend on the circumstances.

'Currently, a case based on a failure to warn theory of liability seems unlikely to succeed, but the law in this area is relatively unsettled as it applies to apps, games, and handheld electronics. As the real world provides more examples of AR encroachment, legal theories and potential liabilities may expand, says Raymond.

'We've already seen cases of people falling off cliffs, being hit by cars, falling off skateboards or even walking smack into a tree while playing the game. If an injury is serious enough to merit a hospital visit, and therefore necessitating a health insurance claim, a lot will depend on where and how exactly the injury occurred.' 

Raymond says while video game distributors and other providers of AR experiences are wise to proactively address potential liabilities and use warnings to help protect them in the event of litigation there is still the question of another possible theory of liability - design defect.



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