Is Nintendo Liable For Pokemon Go Injuries? Are Lawsuits Coming?

The new app, Pokémon Go, has been wildly popular in its short existence. Some of the numbers are jaw-dropping: Nintendo’s stock has risen nearly 50 percent in the last five days. It has surpassed Candy Crush as the most popular mobile game ever, and has already overtaken Twitter in active users. In fact, mobile users are spending more time on Pokemon Go than Facebook, Twitter, Snapchat, or Instagram.

It’s intention as a fun interactive game which encourages users to get outside and catch the Pokémon for themselves, is not without its problems though.

A rash of reports concerning illicit use of the app, robberies and even car accidents have been made. Just take a look at this in-no-way-comprehensive list:

  • 7/18: COLLISION A distracted driver strikes a police car while playing Pokemon Go in Baltimore.
  • 7/18: ASSAULT 19-year-old man is stabbed in Greenville, North Carolina.
  • 7/17: ROBBERY Two people are robbed in St. Joseph, Missouri.
  • 7/16: ROBBERY Three separate robberies occur in Denver, New York City, and Nashville.
  • 7/16: SHOOTING Two teens are shot at in Palm Coast, Florida.
  • 7/15: ROBBERY Two people are robbed at gunpoint by three men in Fresno, California.
  • 7/15: ASSAULT A teen is stabbed and another teen is robbed in Redding, California.
  • 7/14: ROBBERY Two brothers are robbed in Lake Villa, Illinois.
  • 7/13: ASSAULT A distracted man is stabbed in an Anaheim park.
  • 7/13: INJURY Two distracted men survive a fall off a cliff in Encinitas, California.
  • 7/13: ROBBERY A 19-year-old man is robbed while playing Pokemon Go in New York.
  • 7/13: ASSAULT A man is robbed at a bus stop in Austin.
  • 7/13: PAROLE VIOLATION A convicted sex offender is arrested for violating parole by being around children. YIKES!
  • 7/12: ASSAULT Two people are assaulted in a fight in Long Island.
  • 7/12: INJURY A 15-year-old girl is hit by a car and sustains collarbone and foot injuries in Pennsylvania.
  • 7/12: INJURY Texas teen survives bite from a venomous snake.
  • 7/12: INJURY A driver in New York is injured after driving his car into a tree. Yes, he caught a tree.
  • 7/12: ROBBERY A man is attacked and robbed in Chicago.
  • 7/10: ASSAULT A man is stabbed  in Forest Grove, Oregon, but keeps on playing.
  • 7/10: ROBBERY A lure is used to bring players to a Pokéstop in O’Fallon, Missouri, where 4 men rob them.
  • 7/7: ROBBERY A group of players are robbed at gunpoint in Parkville, Maryland.

When something new comes out which becomes a fad, people are eager to take it down, so it’s important to remember that these stories are not common, and the majority of users love the game. But a pervasive question has popped up in legal circles, and that is: would Nintendo be held liable for injuries sustained while playing Pokémon Go?

Video game injuries and lawsuits

Believe it or not, something like this is far from without precedent. There has been a long-recorded history of video game players sustaining injuries; seizures, torn ligaments, broken bones and TV screens. You name it, and someone out there has probably done it. Nintendo is usually quick to react to these types of things: Most are aware of the warning on the start screen of any Wii game stating to secure the strap on the controller around your wrist. They remind people to take a break while playing, and they even gave away protective silicone covers for those Wii remotes, in the event that someone swings too wildly and cracks their friend over the head.

Lawsuits in relation to video game injuries have been filed before as well, not surprisingly involving the arcade staple, Dance Dance Revolution. Two friends were playing Wii, and one was struck in the groin area by his friend with the controller. A three-judge panel ruled in agreement with the insurance company that they don’t have to cover damages, because the action was deemed intentional. An unfortunate decision for the injured to be certain.

The most famous and controversial lawsuit against a video game company was filed by Linda Sanders, the widow of a teacher slain in the Columbine High School massacre, against Acclaim Entertainment and a handful of other companies such as Capcom and Nintendo for America. The general thesis in the case was that video games and movies of a violent nature were directly liable for the shooter’s actions. The lawsuit sought $5 billion in damages.

The judge ruled that all of the 25 defendants named in the suit were not liable for a number of reasons. One was that there was superseding cause and that the actions of the shooter were unforeseeable purely based on their love of violent games and movies. The judge noted that the companies were not liable because, “the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.” Basically, the companies could not have possibly predicted that two deranged kids would one day shoot up a school. The same general conclusion was reached in the case of Wilson v. Midway, which claimed that Mortal Kombat was to blame for a child fatally stabbing his friend in the chest.

Would Nintendo Be liable?

Nintendo seems to absolve themselves of liability in one image.
Nintendo seems to absolve themselves of liability in one image. Image source

Despite the precedent of lawsuits ruling in favor of video game makers, it’s a little tough to tell whether Nintendo would be liable for any injuries sustained while playing Pokémon Go. The company does a very good job of presenting warnings and disclaimers on their games, and it’s clear they’ve thought about this possibility, given the game’s terms of use statements. For example, one portion of it says, “you agree that disputes between you and Niantic will be resolved by binding, individual arbitration, and you are waiving your right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.” This is a very well crafted CYA statement which is intended to absolve themselves of potential litigation regarding in-app purchases, but covers injuries as well.

Perhaps a better question would be whether an insurance company would cover any of these injuries if a claim was filed. This depends on the circumstances, and we could very well have updates on this soon, as people have already been hit by a car, fell off their skateboard, and walked smack into a tree while playing the game. If an injury is serious enough to merit a hospital visit, and therefore necessitating a health insurance claim, a lot will depend on where and how exactly the injury occurred. Breaking your nose walking into a tree? Not likely.

If you take nothing else away from this, remember:

 

*Featured Image by Fredrik Rubensson, via Wikimedia Commons

B. Clausen

A graduate of the University of Kansas, Brian Clausen is the U.S. news reporter for Dopplr. Before joining the team, he created digital content for large companies.

13 comments

  • Nintendo and Niantic need also worry about others injured in accidents caused by players to individuals that don’t play the game and therefore are not bound by their TOS. It could easily be argued that the fact the game takes place in an open world/real world setting and does not do anything to exclude play while driving is endangering the lives of innocent bystanders and therefore the two companies are liable for any damages to them. A case could also be made that their game encourages trespassing in order to fulfill requirements of the game and therefore they’re liable for pain/suffering to homeowners who’ve had their lives invaded by the companies’ product through no fault of their own. . There’s a whole world of lawsuits waiting for both companies over this game.

    • The same could be said for texting. I haven’t heard of a successful suit against a wireless carrier yet for enabling texting and driving. I know suits have been brought on the issue though. At a personal level, I feel personal responsibility is king here. There’s a safe way to use this game and texting. It’s not like cigarettes for instances where the intended use is inherently dangerous.

      • I think your forgetting something you don’t get rewarded for texting. Second you can’t say don’t trespass, while at the same time reward those who do. The reason most people lost to these gaming companies was mainly do to the companies could not of predict these outcomes, but in the case with Pokemon Go, these problem had already been predicted. Lots of researchers and developers have already pointed out the potential risk for these types of games, a long time ago. so they are in a very grey area, well at least under US law.

        • Good point. They are aiding and abbetting crime by offering rewards for trespassing. I am a victim of this game and have numerous photos of people/ virtual creatures outside my window. I have been terrified for a month, trying to figure out why people trespassing on my property and finally somebody told me about Pokémon go so I downloaded the app -sure enough I have three Pokémon right outside my house on my property. It has made my month a nightmare. I welcome any lawyer to contact me, please.

  • Is Nintendo liable to be sued by businesses, for example a hospital, which has a Pokemon Go character placed on the premises without it’s permission and is causing unnecessary disturbance from the public to try to obtain access to areas that they do not belong. Certainly many man hours and resources are being spent by businesses, agencies, etc. to resolve these problems while Nintendo profits at their expense.

    • I would also be interested in liability of the property owners for attractive nuisance. How are property owner suppose to of had fore knowledge of the issue until the first occurrence? How is a property owner suppose to remedy the issue? Cease and desist to Nintendo?

  • This is one of the most absurd things I’ve ever witnessed in my entire life. How is Nintendo responsible for people’s stupidity? They shouldn’t even have the need to put warnings on their products, it’s f*$#ing physics!!!

    • Picuira, it certainly should be common sense that people not drive and play, but there are numerous reports of the game creating extremely dangerous or unfortunate situations. I.E. users using the game to lure victims for robberies and assaults as well as bringing children to the homes of sex offenders.

  • Yeah like when someone breaks my fence to get these Pokemon!!! I don’t have this app why do I have to pay alot of money for something that could have been prevented from Pokemon’s not being g put In my backyard

    • Pokemon Go-ers broke down your fence to get in your backyard? That’s really disturbing.

  • my child was playing the game and he told his little cousin he was going to kill him like did on Pokemon

  • My daughter was hit by a car while walking on the sidewalk by a user in his car while driving. Really is it her fault? Pokémon should pay for her medical and future medical. She was in hospital for two weeks because of a careless pokemon user.

Submit a comment

Your email address will not be published. Required fields are marked *