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Pokemon Go and the Law

Published Monday, September 19, 2016

The Pokemon Go craze is still going strong. One of the most popular smartphone games of all time is based off the card game and hand-held Nintendo games of the 90s and encourages people to walk around to collect 151 Pokemon. It’s gotten people outside but it also is creating legal issues.

Rustin Smith, a partner and trial attorney with Stewart Melvin & Frost, joins us this morning to discuss some of the legal issues that can come with playing Pokemon Go.

Question: Pokemon Go is a popular and fun game for people of all ages to play but some folks are getting wrapped up in the game and it’s leading to legal issues. What are some liability issues people should be aware of?

Rustin: Trespassing is one of the main issues. Pokemon Go players have trespassed on private property while playing the game. Players need to be more aware of where they are.

The game turned a Massachusetts man’s home into a gym. A gym is where Pokemon Go players go to train their Pokemon. The man lives in an old church building. Church sites are sometimes used as gyms in the game which led to the misunderstanding. He routinely has people standing in his front yard training their Pokemon.

Last month, a New Jersey man sued Niantic and Nintendo who developed Pokemon Go because the game placed a Pokemon pocket monster in his backyard and people are trying to get access to his backyard. Trespassing can lead to property damage which opens trespassers up to civil action.

Also, some public places like the Holocaust Museum and Arlington National Cemetery in Washington, D.C. have had to ask people to not play the game there.

In addition, there are reports that pedestrians have been so focused on the game that they are not paying attention to where they are walking. This has led to pedestrians walking in front of moving cars. There have been instances where pedestrians have been hit by a car or the person has caused an auto accident as vehicles try to miss them.

Question: If you injure yourself playing the game, can you sue the game developer, and on the flip side if you cause an accident can you be held liable?

Rustin: Nintendo has a “Safe Play” clause in the terms of service for the game which advises you to remain safe during your play, and suggests that you maintain all necessary insurance policies. It also reminds you that you play the game at your own risk. Also, if you agree to the terms, you actually waive your right to file a lawsuit and agree to submit to arbitrate any dispute you have with Nintendo and its partners regarding the game.

If you cause an accident playing Pokemon Go, you face the same liability you would with any other accident that is your responsibility.

Question: Some people are actually playing the game while they drive their car. What are some of the instances you’ve heard about?

Rustin: One of the craziest ones I heard about was the driver in Baltimore who was playing the game while he was driving at 3:30 in the morning and ran into a police car.

There have been other instances of drivers running into trees and other cars and objects.

It’s enough of a concern that the Georgia Governor’s Office of Highway Safety and AAA have issued warnings about becoming distracted while driving and playing the game.

You could be ticketed. Georgia’s distracted driving law says you cannot write, send, or read text messages, instant messages, emails, or surf the web on your phone while operating a vehicle.

Question: As we wrap up, what’s your advice for the game’s players to stay within the law and enjoy the game?

Rustin: First, don’t drive and play the game. It’s a fun family activity and it’s gotten a lot of people outdoors and moving around but don’t drive and play. Walk and play. And when you do, watch what you are doing.

Be respectful of private property, know your surroundings and be safe.

Most of all . . . have fun with the game. We see players on the square near our office having a great time.


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