Insurance Policies – Better Catch ‘Em All!

August 15, 2016 | Emily C. Durst

Pokémon Go is the latest gaming phenomenon that is taking the world by storm. Within one week of its launch, 65 million people had downloaded the game to their device. Android and iPhone users all over the world are playing this augmented reality game that superimposes Pokémon characters onto a telephone screen. With the assistance of GPS tracking technology and the cameras on smartphones, players wander around trying to find and catch Pokémon characters, with names such as Pikachu and Wigglytuff, which can appear anywhere.

The game has been applauded for getting people outdoors and encouraging exercise as people walk for hours and hours in search of Pokémons. Once-empty parks and paths are now bustling with new foot traffic. It is also viewed as a good way to bring people together and an opportunity to meet like-minded gamers. Additionally, there is a lot of buzz with respect to the commercialization potential of the game.  Through the use of publicly available location data, the game has tagged certain businesses and landmarks as “Pokéstops” where users can stock up on game supplies and place lures to attract Pokémon to an area. Since its launch, many businesses have capitalized on this feature by placing their own lures to encourage players to stop in at their location.

While the game seems innocent enough, there have been an increasing number of reports of injuries, crime, and now lawsuits associated with it. For instance, the game has been cited in several motor vehicle and pedestrian accidents. Pokémons have been used to lure people to remote areas in order to rob them. And just this week a homeowner in Alberta launched a class action lawsuit against the makers of the game after her home was designated a Pokémon Gymnasium (in Pokémon Go terms, Gyms are highly sought after stops).  

In light of this potential for injury or loss, there are possible insurance implications to the Pokémon Go craze.  First and foremost, we could see an increase in the number of motor vehicle accidents caused by players with their eyes on the game rather than the road. We know that distracted driving is already the leading cause of accident-related injuries involving drivers, bicyclists and pedestrians. Indeed, there have already been numerous reports of accidents involving Pokémon Go distractions.  

Second, an unsuspecting homeowner’s yard could become the next Pokéstop. In the recent Alberta lawsuit, the homeowner claims that hundreds of people have flocked to her backyard, scaling her fence in an attempt to get in, sometimes in the middle of the night. While she is pursuing damages for invasion of her privacy, this situation, and others like it, results in an immediate danger of liability and a claim on a homeowner’s policy.

Similarly, many business locations have become unexpected (or expected, as the case may be) interests to Pokémon Go players, creating greater exposure for commercial liability policies.  There have been reports of people walking into doors, rolling ankles and falling down steps while playing the game in retail establishments.

Another interesting legal issue is the extent to which the makers of the game, Niantic, would be held liable for any Pokémon Go-related injuries. Lawsuits against video game makers have been filed before but courts have typically declined to find them liable. Despite the precedent of decisions ruling in favour of video game makers, it is still too early to tell whether Niantic would be held liable for injuries sustained while playing Pokémon Go. The company presents warnings and disclaimers to users every time the app is opened. It is also clear that Niantic has thought about the possibility of claims; the game’s terms of use include a mandatory arbitration clause for all disputes.

While there are certainly novel insurance and legal implications to this new craze, it is important to recognize that Pokémon Go is a game and enthusiasts are simply having fun. Without a doubt, more friends and families have been enjoying the outdoors this summer which, overall, is a good thing.  Only time will tell whether Pokémon Go is here to stay, but in the meantime, players should employ some common-sense tactics in order to avoid injury or loss by being aware of their surroundings and remaining alert at all times.


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