Pokemongo And Certain Laws Don’t Mix

This blog article is written by guest contributor Matthew Kimmel.  Matt is Third Year Law Student at the University of Dayton, School of Law and is currently externing with Holzfaster, Cecil, McKnight & Mues.  Outside of law, and based on this article, Matt is clearly addicted to Pokemongo!  

Unless you live under a rock, you’re probably well aware of the new Pokemon Go craze that has taken the world by storm.  In just over a week, Pokemon Go has become the most popular mobile game of all time in terms of daily users. It has also surpassed Twitter, the popular social media app, in terms of daily users as well.  With the game requiring players to explore the real world in pursuit of digital characters, a variety of legal and safety issues have presented themselves to users.

In the short time that the game has been available, there have already been instances of fights, robberies, and a shooting, all in relation to the game.  In New York, a fight broke out when one group of Pokemon Go players refused to leave a spot where a “gym” was located.  In Florida, two teens were playing the game in their car, in the driveway of a private residence. Believing that the teens were attempting to rob his home, the homeowner opened fire on the pair. There have also been numerous instances across the country of players being robbed while out walking around with their eyes glued to their phones, some at gunpoint or knifepoint.

In addition to the safety issues for players, legal issues exist as well.  One of the main issues that can lead to a bevy of safety and legal issues for Pokemon Go players, and anyone else around them, is distracted driving.  In Ohio, ORC 4511.204 prohibits the use of cellphones or other handheld devices for the purpose of texting.  The statute also outlines certain exceptions to the texting-based rule.  Most exceptions deal with using the phone in situations where a necessity exists, such as emergency or navigation purposes.  Other exceptions exist for functions where brief visual attention is required such as selecting a contract to make a phone call or using a voice operated feature.

While Pokemon Go is not texting and does rely on Google Maps like certain navigation apps do, it is unlikely that Pokemon Go would fall under any of the exceptions.  Pokemon Go requires constant visual attention, especially when trying to actually catch a Pokemon.  That is precisely the type of behavior that the statute sought to prevent.  While catching that Pokemon in the middle of the road may seem necessary to you, I highly doubt the person you rear end will feel the same way.

In 2014, 3,179 people were killed, and 431,000 were injured in motor vehicle crashes involving distracted drivers.  In addition to the risk of death and serious injury, those causing crashes due to distracted driving could be liable for tort claims as well as property damage.

Trespassing is another pressing legal issue surrounding Pokemon Go.  While the game was designed to have most of its “pokestops” and “gyms” at public locations, players can often find themselves wandering from sidewalks or other public areas in pursuit of a Pokemon.  This is especially true in residential areas where it may be necessary for a player to enter someone’s yard to capture a Pokemon or even a driveway like the Florida teens who were shot at.

ORC 2911.21(A)(2) states that, “No person, without privilege to do so, shall knowingly enter or remain on the land or premises of another, the use of which is lawfully restricted to certain person, purposes, modes, or hours.”  Thus, entering someone else’s residential property or even a business after operating hours to catch that coveted Pikachu could net you a misdemeanor offense.

One attorney theorized that it could actually be the property owners that find themselves with liability.  Under the theory of “attractive nuisance”, a possessor of land could be subject to liability for physical harm to children trespassing thereon caused by an artificial condition.  That’s right.  YOU, as a homeowner, could possibly be liable for tort damages is a child sneaks onto your property and is injured.

For those players hoping that they can blame the app for their violations of the law and hold the developers responsible, you’ll be out of luck.   The terms and conditions that you agreed to before playing the game state that: “You also agree not to use the App to violate any applicable law, rule, or regulation (including but not limited to the laws of trespass) and you agree not to encourage or enable any other individual to violate any applicable law, rule, or regulation.”  The terms and conditions also state that, “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.”

Summary for PokemonGo players out catching them all that don’t have time to read the whole article:

-Don’t Pokemon Go and drive

-Don’t get shot

-Don’t get robbed or beat up at a pokestop; use the buddy system when adventuring

-Don’t assault someone because they’re on the red team

-Don’t go onto private property to catch that Charizard