Who is to blame for Pokémon Go injuries?

Pokemon Go has taken the world by storm. Kevin Yee offers a lawyer’s perspective on what this means for road safety.

Pokémon are everywhere in Vancouver. That is, they are if you play the augmented-reality game that has exploded onto the world scene.

The Pokémon Go game’s rise has been so dramatic that it’s less of a game and more of a social phenomenon. You don’t need to play or even like Pokémon to marvel. Just skim the news headlines. Within just two days of its release, Pokémon Go was found on one in every 20 android phones in the U.S. The total downloads worldwide are being reported daily and they are into the tens of millions.

In fact, in only the first week of its limited global release, Pokémon Go was downloaded more than any app in history.

Large groups of players are gathering at seemingly random public places. To those unfamiliar with the game, it could seem like a scene from The Night Of the Living Dead. At the game’s designated gyms and “poké stops”, players are found standing or walking aimlessly with their eyes glued to their phones. They are busy training or catching the Pokémon found throughout the city. For many, the game is addictive and nostalgic.

Stories are trickling in of some shocking incidents that show just how captivating the game is for players.

Last weekend, two Alberta teenagers were detained after they unknowingly crossed the border into the U.S. in pursuit of pokmon. Two players in California suffered injuries after walking off a cliff. There’s a video online of a Baltimore driver crashing into an empty police cruiser because he was, reportedly, distracted by playing.

Social media has plenty of videos of drivers darting out of their cars in the middle of the street to chase rare pokémons. (Or is it pokémen? A gaggle of pokémon?).

This game is bringing people out of their homes, and everyone is taking notice. I spoke to a bus driver the other day who said she was growing uneasy about all this. She has a hard enough time driving her routes with careless pedestrians to look out for. Now she has wayward pokémon “trainers” to worry about.

Take this story for an example: a 15-year-old in Pittsburgh was playing Pokémon Go and got struck by a car while crossing a busy road. In her interview with local news outlets, she and her mother blamed the game for “taking” her to parts of town she would not have otherwise gone.

Pokémon Go’s prevalence suggests that the game might become relevant in personal-injury law. It may distract players from proper usage usage of our roads and sidewalks. In personal-injury law, the issue of fault or negligence is key. It’s not always so simple as determining which person has the “right of way”. Drivers, cyclists, and pedestrians are all expected to exercise care and caution. If Pokémon Go players are involved in car accidents because they are distracted, they might be found negligent. It could be that drivers looked away from the road to check their phones.

Another scenario is that distraction from the game contributes to contributory negligence. In law, a plaintiff can also be found negligent, like a defendant. As a result, the courts can blame both parties in a split of liability. Splitting liability is common. It’s how the courts basically say that both the plaintiff and defendant failed to exercise reasonable care. A split on liability has consequences on any award for damages: plaintiffs seeking damages would have their awards reduced if they are partially at fault too.

For example, if a pedestrian crossing with a green light gets hit by a car that ran a red light, the driver is likely going to be solely to blame. But if that pedestrian too eagerly stepped off the curb to catch a “Charmander” on a phone, then that pedestrian could also be blamed. Rather than finding the driver solely responsible, the blame for the accident could be shared in some proportion.

Pokémon Go has gotten a lot of media attention in a short period of time. But, in a way, those cautionary tales of Pokémon Go players getting injured aren’t much different than the occasional media reports of pedestrians getting hurt because they’re too busy texting while walking. Every now and then, people propose laws that prohibit texting while walking.

So this brouhaha with Pokémon Go isn’t new. Common sense applies. This game may be here to stay, so let’s all be safe.

Trainers: look out before stepping off the curb! Drivers: stop playing and watch out for pokémon trainers!

A word of caution: you should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.