The Virtual World Of Pokémon Go Torts

While drafting this article, I looked up at a video monitor in my office which streams Fox News. Two men playing Pokémon Go had just fallen off a cliff in Encinitas, California. It was not reported at the time what injuries they sustained, but the men were taken to a trauma center. One of them fell onto a beach about 80 feet below, while the other dropped 50 feet. The men told rescue officials they had been trying to catch a Bulbasaur when they fell.

Pokémon Go is a free-to-play location-based augmented reality mobile game developed by Niantic, Inc., a San Francisco spin-off of Google parent, Alphabet, Inc., and published by The Pokémon Company as part of the Pokémon franchise. It was released worldwide in July for iOS and Android devices. You play it on your phone and it utilizes your phone’s camera and GPS to make the real-life world around you the virtual world in which you play the game. The game requires users to “catch” different Pokémon creatures at various locations. The game streams video of your surroundings as you walk or drive and reveals virtual cartoon Pokémon creatures that appear to be in the real world. The mingling of virtual gaming and reality has become catnip for anybody who has ever held a joystick. In more populated areas, you can locate Pokémon “gyms”, typically located at identifiable landmarks and points of interest, such as art museums, historical markers, monuments, etc. Your most powerful Pokémon is chosen to battle the gym leader and take control of the gym, which you control until somebody else comes along and defeats you.

The augmented reality nature of Pokémon Go is such that you are glued to your phone’s screen when playing, watching carefully for the next Pokémon creature to be captured before it is caught by somebody else. The game can even be played more efficiently if done while driving under 20 MPH. The safety feature, which was intended to prevent the game from being played while driving, now means honking your horn at slow-moving Pokémon Go drivers. On July 12, an Auburn, New York driver slammed his car into a tree while playing the game. His injuries were minor because he was travelling – you guessed it – 20 MPH.

Popular areas for Pokémon creatures or gyms are often crowded with hundreds of people, all staring at their screen. As you might imagine, the nature of this game is even worse than texting while walking across the road or driving. Players become fixated on the phone’s screen and even park further away from the office in order to take advantage of more Pokéstops along the way.

It has almost become second nature for lawyers, insurance claims handlers, and subrogation professionals to seek discovery of cellphone and texting records. Many a case is won or lost based on information that one of the parties was using a cell phone at the time of the accident. Now, however, it will be important to search beyond the cellphone provider’s records. It may be necessary to search the party’s cellphone to see if a Pokémon Go app is installed and whether it was functional at the time of the accident. Pokémon Go has become a cultural phenomenon overnight, and it won’t be long before we see the first lawsuits against the creators of the game. Lawyers are already advertising for clients who have been injured while playing.

Many cell phones also contain data showing activity from the Fitbit app to help show the level of activity of a party to a lawsuit. In Calgary, a woman injured four years ago had data downloaded from her Fitbit by defense lawyers who didn’t believe that she was seriously injured. The lawyers run this data through an analytics platform known as Vivametrica, which uses public research to analyze it against a baseline of activity for someone of her age and profession. Insurers can’t force plaintiffs to wear Fitbits as part of an “assessment period,” but they can request a court order requiring whoever holds the data to release it to them. As Pope John Paul II famously said, “The future starts today, not tomorrow.”

Gary L. Wickert

Gary L. Wickert is an insurance trial lawyer and partner with the law firm of Matthiesen, Wickert & Lehrer, S.C. Gary has 35 years of litigation experience and is regarded as one of the world’s leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and a national and international speaker and lecturer on subrogation and motivational topics.