Pokémon GO is the new phenomenon sweeping across the
globe that some people are already sick of due to the relentless
media, and others are scratching their heads and asking 'what
it is?' If you are not familiar with the game, you should be.
It is only the beginning of a new kind of virtual reality cell
phone game – the next level of the mass gaming addiction. You
are probably noticing an increasing number of pedestrians walking
around staring at their phones (more than usual that is). If you
are familiar with the game, then you know how addicting it can be
to fill your Pokédex. So addicting, in fact, that personal
injuries associated with the game have been making the news every
day for a month now.
As part of the game, players use their camera-phones and GPS to
capture different Pokémon, i.e. little creatures, by walking
around in the real-world. There are a lot of questions to be asked.
Can property or business owners be held liable for players? Will
players be held accountable? Can Niantec, the creator, be liable?
How effective is the Disclaimer?
Property owners and businesses have an obligation to keep people
(even trespassers!) reasonably safe while on their premises. That
is unchanged regardless of the game. The issue this game creates is
that more people may be entering one's premises where few or
none would have entered before. Property and business owners can
put up a sign such as, "Private Property: No Trespassing"
or something more specific to Pokémon GO. Once on their
properties, business and home owners can also ask players to leave
the premises. Pokémon GO players who trespass or break the
law may be subject to arrest and fines.
Of course players need to pay attention. The game loads with a
warning to "be aware of your surroundings". At the time
of publishing, new warnings were added including, "Do not
trespass while playing Pokémon GO," "Do not enter
dangerous areas while playing Pokémon GO," and,
"Do not play Pokémon GO while driving."
Certainly, walking through the streets with your head down is
bound to lead to injury. It is also dangerous for other pedestrians
and drivers. There is no doubt that driving, walking, cycling or
running while playing this game is unsafe and will result in a
finding of negligence on the player's part. But what about the
driver that hits the Pokémon GO player? We live in a
jurisdiction where there is a reverse onus for liability where
pedestrians are hit by motor vehicles. This is problematic and will
trigger fault where maybe none should be placed. Pokémon GO
players should be aware that, if liability is proven, their portion
of fault for causing or contributing to the accident will be taken
into account and may reduce their potential claims for damages.
It goes without saying that playing this game while driving is
an absolute "No No", especially with the Province's
new ad campaign targeting texting while driving. We are all aware
of the dangers of distracted driving. Trying to capture Mewtwo
while driving so you can have a fun screenshot is no exception.
before playing. These terms are questionable at best. Jurisdiction
issues, mandatory arbitration, caps on damages, inadequate
provisions for minors and the 30 day opt-out are key issues that
plenty of room for interpretation, which leaves Niantec open to
potential liability from injured players, and injured third
parties. What also remains to be seen is how Niantec's warnings
potentially decrease their liability for personal injury and shift
it to the injured player. What does seem to be clear is that
Niantec's legal team is quickly recognizing the potential
liability of the game, and identifying ways to protect
Pokémon GO presents challenges to negligence law, but the
core principles of negligence still apply. It is a fun game and a
good excuse to explore the city, and get exercise, but for
Pikachu's sake, BE CAREFUL!!
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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