Pokémon Go Lawsuits and The Expert Witnesses Needed to Win

Anjelica Cappellino, J.D.

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— Updated on February 11, 2021

Pokémon Go Lawsuits and The Expert Witnesses Needed to Win

Pokèmon Go has taken the world by storm almost as quickly as the Pokèmon franchise had during its original debut in the 1990s.

For the uninitiated, Pokèmon are cartoon creatures that originally rose to fame in a hugely popular video game series for Nintendo’s Gameboy hand held console. In July of this year, Pokèmon experienced a surge in popularity among nostalgic millennials when it released its own location-based, augmented reality game for mobile devices, “Pokèmon Go.”

The mobile app, developed by Niantic Labs, allows players to see virtual Pokèmon on their cellphone screens as they navigate real-world locations. The goal of the game is to “capture” as many Pokèmon as possible; the chances of which are increased by walking to different locations and covering as much ground as possible.

The game is wildly popular – it has been downloaded more times than the ubiquitous dating app, Tinder.

One positive result of the Pokèmon Go craze is that it encourages players to leave their homes and walk around in order to catch Pokèmon. In today’s sedentary society, where people spend the majority of their time sitting at a desk strapped behind a computer screen, Pokèmon Go has been lauded for encouraging increased physical exercise and exploration of one’s outdoor surroundings. But like many overnight sensations, Pokèmon Go has also had some unexpected consequences – physical injuries.

With personal injury and wrongful death claims looming over the gaming conglomerate that created the app, some have begun to wonder how litigators will craft their cases and deploy expert evidence in connection to such new technology.

It is likely that any litigation involving Pokèmon Go will require expert witnesses in both the traditional and cutting-edge disciplines. These cases, like most personal injury claims, will certainly demand the expert testimony of doctors, accident reconstructionists, and human factors professionals. However, Pokèmon Go litigation will also need a number of new experts in the field of augmented reality. As the field itself is relatively new, augmented reality experts  will offer a different perspective on case analysis and strategy. Because such technology is the crux of this type of litigation, augmented reality experts, along with experts in the fields of computer graphics and software development, will undoubtedly be at the forefront of nearly every Pokèmon Go trial.

As players scour their neighborhoods for Pokèmon to capture, virtual characters pop up on their smartphone screens through the camera. Making it seem as though the little pocket monsters are right by the players. This type of augmented reality game has caused obsessive gamers to go above and beyond to capture as many Pokèmon as possible. As a result, a variety of physical injuries and downright strange accidents have occurred while on the quest for Pokèmon domination.

For example, it had been reported that two men fell 50 to 90 feet down a cliff in Encitas, California, while playing the game. The game has also been reported to cause frequent traffic accidents due to distracted drivers and careless pedestrians. In the rush to catch as many Pokèmon as possible, trespassing incidents have occurred. One of which resulted in a North Carolina 15-year old being shot to death when he attempted to gain access to a neighborhood home that allegedly housed a rare Pokèmon. He was shot by the homeowner who had mistaken the teen as a burglar.

The game has also been used as a means for criminals to lure unsuspecting victims to desolate areas. Missouri police have reported that four armed robbers used the app to predict when people would arrive at a specific location for a limited time.

As the app has become a global sensation, many cities, states, and countries have issued warnings to its citizens about the adverse effects of Pokèmon Go. White House spokesperson, Josh Earnest, urged people to “not suspend common sense” while playing the game. Likewise, the Bosnian government warned its citizens to be mindful of landmines while using Pokèmon Go.

The app is already banned at government sites in Kuwait and Indonesia. While Russia has made it illegal to play the game in churches.

Pokèmon’s Day in Court

What types of legal claims are potentially available to those who have been injured in their quest to “catch ‘em all”? Furthermore, what type of expert witness testimony should be solicited? The seemingly most frequent claim against Pokèmon Go would be for personal injuries and wrongful death caused by negligence. A litigant would need to prove that the gaming company owed a duty of care to its players, and breached its duty. This in turn, caused injuries and loss to the players. Likewise, in the instances of a wrongful death claim, a player’s estate would need to prove that the player’s death was caused by the negligence of the company.

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On the other end of the spectrum, for non-gamers whose lives have been interrupted by unwanted monsters, it may be possible to impute liability onto Pokèmon Go for placing the virtual characters on the private property of unsuspecting citizens. Trespassing is generally defined as the physical entry onto another’s property without justification or permission from the property owner. In the case of Pokèmon characters being placed onto private property, a plaintiff can arguably claim the company “virtually” trespassed into their homes.

Similarly, the tort of nuisance, which is the non-trespassory invasion of the reasonable use or enjoyment of one’s own property, may also be a potential cause of action. In light of the fact that Pokèmon are not physical beings but virtual characters, nuisance may be a viable alternative to a trespassing claim in that physical trespassing is not a required element.

But how would one prove a claim against Pokèmon Go? As is the case with all personal injury and wrongful death claims, expert witnesses such as medical professionals and accident reconstruction specialists would be essential to outline the plaintiff’s injuries, help a jury understand the facts of the case, and explain whether the defendant’s negligence caused the accident.

Likewise, economic experts would be of great value in such cases; as they would be able to justify plaintiff’s request for monetary compensation and clarify as to how the injury will impact a plaintiff’s life. As Pokèmon Go players fall in relatively younger age groups, financial experts would be particularly useful to testify to the long-term effects and monetary losses of permanent injuries.

The most useful experts in a Pokèmon Go case, however, would be of the more technical variety.

In recent years, experts with a particular focus on augmented reality have emerged. These experts would undoubtedly be key witnesses at any Pokèmon Go trial, as they would not only establish basic information about computerized software and design, but would also be able to explain to a jury the unique design of virtual gaming in real-world environments. Particularly because augmented reality games are so new to the general public; an augmented reality expert would be indispensible in assisting and educating the jury on such novel and complex technology.

Niantic Lab’s Arbitration Clause

Before injured Pokèmon Go players rush into court, they should review Niantic Lab’s Terms of Service. These are present on the Niantic Labs website and viewable in the gaming application. As part of the terms of service, players agree to be bound by an arbitration clause, which mandates any dispute, claim, or controversy be settled by binding arbitration opposed to open court. Niantic Labs does provide certain exceptions to its arbitration clause, however, and allows its players to bring individual actions (opposed to class action suits) in small claims court. Players also retain the right to seek injunctive relief to prevent infringement of copyrights, trademarks, and other intellectual property rights. Lastly, Niantic Labs provides that players have the right to litigate any other dispute upon written notice to the company within thirty days following the date the terms are accepted (referred to as an “Arbitration Opt-Out Notice”).

So what does this mean for the average Pokèmon Go player? Most importantly, Pokèmon Go has only been in existence for less than a month; which means all players have the opportunity to opt-out of the arbitration clause if they so choose. Furthermore, it is significant that individuals have the opportunity to bring legal actions in small claims court and to request injunctive relief for intellect property infringements. While there has been some justifiable apprehension about the arbitration clause, it has luckily been brought to the attention of the public sooner rather than later.

But the most important point is that virtual reality gaming can have very real consequences. So while you are trying to “catch ‘em all,” it is imperative to stay safe and use common sense!

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