Law360, New York (August 3, 2016, 3:56 PM ET) --
Pokemon, a childhood pastime for many millennials, has had a resurgence, taking the country by storm in the form of “Pokemon Go.” For those unaware, Pokemon Go is an augmented reality application developed by Niantic Inc. in partnership with Nintendo Co. Ltd., that users download for free on their smartphones. Utilizing your smartphone’s GPS, location tracking and digital image camera overlay, the game allows users to navigate the real world hunting down Pokemon and battling online with other players. Since its launch on July 5, 2016, the application has been downloaded 75 million times. Consequently, Nintendo’s value has soared. The game currently has more daily users than Twitter, making it the most popular mobile game application ever released. While it is not the first game to merge the physical and digital worlds, Pokemon Go is the first to successfully bring augmented reality to the mainstream. It has also caused experts to predict a rapid acceleration in the development and use of similar augmented reality games.
Coinciding with the increasing popularity of the game are mounting reports of injuries resulting from careless or inattentive players. Recently, two men fell several stories off a sandstone bluff in California while zealously chasing characters in Pokemon Go. Similarly, a driver in New York crashed his car into a tree while playing Pokemon Go, sustaining severe physical injuries. Reports and videos have also surfaced showing stampeding mobs of players gathering in public areas causing substantial injuries in an unruly attempt to catch rare Pokemon. The game’s “beacon feature,” which allows players to attract others to their physical location, has also left players vulnerable to criminals. For example, a teenager in Guatemala was lured into a side street by the beacon feature and murdered in an apparent robbery. In a similar incident, a dozen people in Missouri were robbed at gunpoint after being lured into a secluded area by the beacon feature. Given the mounting reports of injuries, lawsuits are likely to follow.
To be fair — the developers of Pokemon Go have recently taken measures to curb some of the most hazardous aspects of the application, instituting a lock-down on Pokemon Go “hatching” if the user is traveling over 20 mph. The developers have also created robust warnings to users, stating that when playing the game, users should be aware of their surroundings and vigilant of their environment. Notably, however, the application does not shut down entirely if the user is exceeding 20 miles per hour. Users who are on the prowl for Pokemon are still able to view maps displaying Pokemon while driving, and are also still able catch Pokemon and interact with other aspects of the application. Moreover, the developers have not modified the aspect of their game that encourages players to be the first on scene to catch the virtual creatures. These and other aspects of the Pokemon Go application may pose troubling and vexing legal issues for the application developers.
Nintendo and Niantic are not the only mobile application developers in the product liability crosshairs. At least one accident victim is suing another social media app, Snapchat, for brain injuries sustained when he was struck by a car driven by a woman who was utilizing the Snapchat “speed filter.” The Snapchat speed filter feature tracks users’ speed and allows them to overlay this speed on top of an image. It also rewards points to users who post these pictures. The lawsuit alleges that the company negligently failed to remove the feature even after it became aware that it was linked to distracted driving. Similarly, in 2014 a young girl was killed by an Uber driver while walking across a street. Her family sued Uber, claiming that Uber’s ride-hailing application was unreasonably dangerous to others because it encourages Uber drivers to look at their phones while driving. While the Uber lawsuit settled out of court, the Snapchat lawsuit is still pending in Georgia state court. Despite some of the attention garnered by the Uber and Snapchat lawsuits, the law surrounding phone applications and physical harm remains underdeveloped and uncertain.
The first theoretical plaintiff in these types of lawsuits is the user of the Pokemon Go app itself. However, these lawsuits are the least likely to gain any real traction amongst courts. First, like most apps that involve virtual worlds, Pokemon Go contains a robust terms of service (“TOS”) agreement and product warnings that would most likely shield Nintendo and Niantic from any lawsuit originating from the user itself. These TOSs, or end user license agreements (“EULA”) as they are often called, are typically used to govern the legal relationship between the end user and developer. In Pokemon Go’s case, when users download the app, they are warned about the hazards of inattentive gameplay, required to consent to arbitration and agree that their use of the app is at their own risk. Users are presented with the terms of service and must hit an "I ACCEPT" button before logging in. Jurisdictions around the country have overwhelmingly found that these, and similarly formulated “clickwrap” waivers of liability, are enforceable. Moreover, courts have become increasingly reluctant to disaffirm these clickwrap agreements on the grounds that the user was below the age of consent and could not lawfully enter into a waiver of liability agreement.
Second, it is questionable whether a court would find that Pokemon Go owed its users a legal duty of care. A pre-condition to any claim rooted in tort liability is the existence of a legal duty. Typically, courts tie the existence of a duty to foreseeability. The more foreseeable the risk, the manner of injury, the resulting injury or the person injured, the more courts are willing to impose a duty on the defendant to have acted with due care to avoid the injury. In their analysis, courts also consider the public policy considerations of establishing a duty. In fact, the question of whether an injury is “foreseeable” is such an awkward and nebulous legal standard that scholars have argued that the public policy prong is actually the principal factor in determining whether a duty exists. These scholars have argued that when discussing “foreseeability,” courts are simply cloaking policy-based reasoning in doctrinal-sounding language.
For example, the U.S. District Court for the District of Utah utilized strong policy-oriented language when it dismissed a case brought by a user of Google Maps, injured after the application had directed her to walk across a rural highway with no stoplights or sidewalks. The court refused to impose a legal duty on Google, noting that while it was foreseeable that the plaintiff could get injured as a result of walking alongside a busy road, users are ultimately responsible for their own safety. The court further noted the “high social utility” of applications like Google Maps and found that imposing a duty on Google to provide accurate directions and warn of traffic hazards would “clearly be difficult, if not impossible for Google to bear.”
Nintendo and Niantic may have a harder time defending lawsuits brought by injured third parties — individuals who signed no waiver of liability, and who are less likely to share in fault for their own injuries. Like cases involving user injuries, the first inquiry is whether Niantic or Nintendo even owes a legal duty of care to a third-party, non-user, and if so, what is that duty? So far, courts have been unwilling to find third-party injuries that result from video games sufficiently foreseeable to trump important public policy considerations. For example, in 2002, the U.S. District Court for the District of Colorado dismissed, for lack of duty, claims brought against a video game company by a widow of a teacher slain in the Columbine High School massacre. The court based its ruling, in part, on the fact that the Columbine shooters’ actions were not sufficiently foreseeable to trump the high social utility of creative works. The U.S. District Court for the District of Connecticut subsequently used the same general reasoning in dismissing a lawsuit where the plaintiff alleged that Mortal Kombat was liable when a child fatally stabbed a friend.
Courts have also rebuffed many of the claims by car-crash victims who sued cellphone manufacturers on the grounds that the manufacturers should have foreseen that texting would enable careless driving. In one of the first cases dealing with this issue, an Indiana state court reasoned that while there was some degree of foreseeability that texting could cause a user to drive carelessly, “imposing a duty on Cingular and similar companies to prevent car accidents such as the one in this case would effectively require the companies to stop selling cellular phones entirely because the companies have no way of preventing customers from using the phones while driving.” More recently, the U.S. District Court for the Western District of North Carolina dismissed a lawsuit brought by an injured third party against a text-messaging device reasoning that “if such a legal duty to anticipate misuse were to be imposed on manufacturers, no vehicle would be capable of traveling above the speed limit, car ignitions would all be equipped with ignition interlock devices, and guns would not be sold to persons with poor judgment.”
Certain counter examples also exist. For example, at least one court has taken an alternative approach to text messaging, extending liability to a remote individual who had been texting with his friend right before his friend had struck the plaintiff. In the highly publicized opinion, the New Jersey state court stressed that public policy considerations, such as increased public awareness of the dangers of texting and driving, would be furthered by through an imposition of a legal duty upon those who knowingly text message a driver. And in a decision articulated in several first-year law school textbooks, California's highest court found that a radio station that had encouraged listeners to race from place to place in their cars owed a duty of care to a driver killed when his car was pushed off the highway by a speeding contestant.
Conclusion As the law catches up with events that involve the digital world, application developers can expect more guidance on how to minimize their legal exposure resulting from injuries to users and bystanders. For the time being, however, users are less likely to recover on a products liability claim than third-party plaintiffs because of the robust warnings and the terms of service presented to the user of the application at the start of gameplay. And, until there is a real legal framework for injuries resulting from augmented reality games, courts will continue to rely on policy justifications, including the social utility of Pokemon Go and similar augmented reality applications in formulating their opinions.
 See, e.g., Moore v. Microsoft Corp., 741 N.Y.S.2d 91, 92 (Sup. Ct. 2002); M.A. Mortenson Co. v. Timberline Software Corp., 998 P.2d 305, 315 (Wash. 2000).
 See generally The Infancy Defense in the Modern Contract Age: A Useful Vestige, 34 Seattle U. L. Rev. 613, 620 (2011).
 W. Jonathan Cardi, Purging Foreseeability the New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L. Rev. 739, 763 (2005)
 Rosenberg v. Harwood, No. 100916536, 2011 WL 3153314 (D. Utah May 27, 2011).
 Sanders v. Acclaim Entm’t, Inc., 188 F. Supp. 2d 1264, 1268 (D. Colo. 2002).
 Wilson v. Midway Games, Inc., 198 F. Supp. 2d 167, 170 (D. Conn. 2002).
 Williams v. Cingular Wireless, 809 N.E.2d 473, 479 (Ind. Ct. App. 2004).
 Durkee v. C.H. Robinson Worldwide, Inc., 765 F. Supp. 2d 742, 749 (W.D.N.C. 2011), aff'd sub nom., Durkee v. Geologic Sols., Inc., 502 F. App’x 326 (4th Cir. 2013).
 Kubert v. Best, 75 A.3d 1214 (N.J. Super. Ct. App. Div. 2013).
 Weirum v. RKO Gen., Inc., 15 Cal. 3d 40 (1975).
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