All across the United States, people have been fervently pursuing imaginary creatures with the Pokémon Go phone app. An augmented reality filter allows users to find Pokémon characters in their home, office, and other places around town. The app is designed to allow your entire environment to act as the setting for the game, with you as the main character.

In the quest to “catch ‘em all,” millions of people have downloaded the popular app created by gaming company Niantic, Inc. in partnership with Nintendo. CNN reported that Pokémon Go shattered the current record for downloaded games within its first week of availability on the Apple Store and reached the top free app spot in the Google Play store. TechCrunch reported that only a few days after the app’s release, downloads totaled over 7.5 million.

The popularity of the game has translated into several real world benefits. Users are walking long distances to hatch Pokémon eggs and find new creatures, getting plenty of fresh air and exercise. The game also allows people to socialize with other players and find new places in their community to visit.

Pokémon Go... to court

Not all of the stories coming out of Pokémania are positive. Several players have been robbed while playing the game, including incidents where the app was used to lure unsuspecting victims to a location. Players paying more attention to the game than their surroundings have wandered off cliffs or into traffic. And in Ohio, two players were arraigned for trespassing after they climbed a fence to pursue Pokémon in the Toledo Zoo, after hours.

However, the legal concerns related to the game go well beyond those involving criminal law. The Connecticut Law Tribune recently featured an article entitled Pokémon Go: Legal Considerations, Including Personal Injury Concerns. The article addressed the current uncertainty surrounding premises liability when a Pokémon Go player is injured on the property.

The game’s loading screen encourages players to be “aware of their surroundings at all times.” This warning, along with the “terms of use policy” created by the developer, are meant to shift liability for any personal injuries away from developers.

But suits over the popular app are already popping up across the country. Bloomberg reported on a class action lawsuit being filed by a Michigan couple against Niantic and Nintendo for creating a nuisance. They claim that Pokéstops and Pokémon gyms have turned a local park into a nuisance and made it a “safety concern” for others.

Pokémon and personal injury

Two very important questions remain: 1) What happens if I am injured while playing Pokémon Go? 2) What happens if I am injured by someone else while they are playing Pokémon Go? Although both of these questions are related, their answers may be drastically different. There are currently no suits moving forward against Niantic or Nintendo for Pokémon-related personal injuries.

That is not to say that there are no incidents which may qualify for this type of analysis. In one incident, a driver crashed his vehicle into a tree while attempting to drive and play Pokémon Go. Just a few days later, a driver distracted by the game slammed into a Baltimore police cruiser while driving and playing the game. In August, a truck driver playing Pokémon Go in Japan struck two pedestrians, killing one and injuring the other.

The player in the first incident will likely be held responsible for his own injuries. One should not expect to recover damages from Niantic or Nintendo if they are injured while playing Pokémon Go, especially after agreeing to their extensive terms of use policy. However, only time will tell how much the companies have adequately protected themselves with their user agreements.

Liability for distracted driving

If you are injured by someone playing the game, that is a different matter altogether. Baltimore Police spokesman T.J. Smith equates playing Pokémon Go while behind the wheel to texting and driving. Connecticut’s distracted driving law clearly states that “no person shall operate a motor vehicle on any highway while using a handheld mobile telephone to engage in a call or while using a mobile electronic device while such vehicle is in motion.” The violation of a criminal law constitutes “negligence per se,” with the wrongdoer held liable for any damages suffered by a victim.

Connecticut is a comparative negligence jurisdiction, which means that both parties may be partially at fault. For example, even if you stop abruptly before an automobile accident, the person chasing Pikachu in the vehicle behind you could be held liable for the majority of your damages, if not all of them. Whether or not Niantic or Nintendo will be held civilly responsible for a user’s unsafe behavior is yet to be tested.

Call a licensed attorney

Every case is different. Whether it is a Charmander at a crosswalk or a Squirtle in the street, you are still protected by the laws of the state of Connecticut. Although someone may not have seen you while they pedaled their bike to the nearest Jigglypuff, that does not mean they are not responsible if they hit you. 

If you or a loved one have been injured in a Pokémon Go related incident, contact a licensed attorney. Mariani Reck Lane, LLC’s experience in personal injury law can help determine what your next step should be. Call today at 860-443-5023.