Gotta Catch a ‘Case’?

by Habib Olapade

Pokémon Go has added nearly 8 billion dollars to Nintendo’s total market capitalization since its debut in early July 2016. Indeed within the short span of two months, the app has acquired more active daily users on Android than Twitter . Pokémon Go is an augmented reality application that runs on users’ smartphones. Once the user downloads the application, the game accesses her phone’s GPS and clock, superimposes computer-generated graphics and sound, and displays an anime-like version of Google Maps to make Pokémon characters appear on the phone’s screen. The game has been credited for marshalling legions of couch potatoes and Generation Y members out of doors.

Augmented reality games such as Pokémon Go, however, come with a distinct set of legal difficulties that courts will have to grapple with. Users, many of whom are younger than eighteen, often have to trespass on private property to catch Pokémon. Placing Pokémon on private property can create attractive nuisances opening up owners to absolute liability for injuries trespassers suffer on their property. This doctrine is applicable if four conditions are met. The nuisances must (1) be in a place that the owner knows children are likely to trespass on, the nuisance must (2) expose the children to an unreasonably high risk of death or injury, (3) the utility the nuisance provides to the owner must be slight in comparison to the risk posed to the children, and (4) the owner must fail to take reasonable care to shield children from the nuisance. In other words, an attractive nuisance is something that an owner knows children find irresistible but nonetheless does not prevent kids from accessing — even though the reasonable man would. Unfenced yards containing deep swimming pools or uncaged deadly animals are examples of attractive nuisances. Finally, the constant movement that is required to play the game makes it inaccessible to some physically and mentally disabled persons, possibly exposing Nintendo and Niantic, the game’s owners, to liability under Title III of the Americans with Disabilities Act.

Trespass occurs when an individual interferes with a property owner’s possessory rights in her or his land. One’s right to exclusive possession in her land is impaired when an individual is unlawfully and intentionally, recklessly, or negligently present on the owner’s land without the owner’s consent. The trespasser’s ignorance is almost never a valid defense that will exempt him from liability for actual damages. Thus, placing Pokémon on private property can cause errant players to wander into unfamiliar areas and exposes users to liability for trespass. Theoretically, this problem can be nipped in the bud by concentrating Pokémon placement in public forums outside the immediate vicinity of the home’s curtilage. This solution is insufficient, however, because it places a small Band-Aid on a deep wound. Pokémon Go is simply the first of many augmented reality video games that Americans will be able to access. The market is already stocked with dozens of intriguing options for casual gamers. Adolescents can battle for control of local regions and landmarks in Ingress, an iOS and Android application. Middle-aged gamers can hunt genetically enhanced cyborg teenagers in Cyber-Generation, a role playing augmented reality game. Players can even become real-life Ghostbusters by purchasing Spec-Trek, a ghost hunting video game. The options are truly limitless.

The problem is that the challenges accompanying these options may also know no bounds. As the number of available games increases, so will the demand for public space on which users can play those games without worrying about violating local trespass laws. Chaos or inconvenience may result if there is no central authority that can prevent large numbers of gamers from converging on the same spot at the same time. The matter is even more complicated because the act of playing video games is protected by the First Amendment’s free speech clause. The free speech clause does not allow the state to impose content-based restrictions on expression unless the restriction is closely drawn to serve a compelling interest. However, the First Amendment does allow the state to single out speech for particular restrictions so long as the law at issue does not distinguish between different cases on the basis of the content of the speech and does not prohibit the speech, but only confines it to certain reasonable times, places, or manners. At the moment, the state does not need to draw content-based distinctions among augmented reality applications to minimize the potential for future disorder. Indeed, there are a multitude of narrowly tailored options. Government administrators could parcel out space on a first-come first-serve basis or use an algorithm to randomly assign gamers to public forums.

Pokémon Go may also expose private land owners to liability under the attractive nuisance doctrine. Virtual Pokémon are not inherently dangerous. What happens, however, when a child follows a Pokémon onto private property and is then injured by a piece of equipment that is not an attractive nuisance? On one hand, the doctrine of contributory negligence, which prevents an injured plaintiff from receiving compensation from the other party if the plaintiff’s negligence contributed to his injury, may prevent the child from recovering. On the other hand, the only reason the injury occurred was because an imaginary pet resembling an exotic animal was present on the owner’s property albeit without the owner’s consent. In all likelihood, the child would recover and the owner would then seek indemnification from Nintendo and Niantic.

This hypothetical assumes, though, that the child is able to easily navigate her or his environment. Physically and mentally disabled children, who are unable to do so, may never be exposed to an attractive nuisance lawsuit, but they too have a right to enjoy their youth by chasing after imaginary pets. Title III of the Americans with Disabilities Act (ADA) secures this right by prohibiting private places of public accommodation such as health clubs, hotels, and movie theaters from discriminating against individuals with disabilities. Many readers may associate public and private accommodations with physical buildings. Since 2010, however, the Department of Justice has taken the position that an entity does not have to be associated with a physical structure in order to be a public accommodation. Indeed, the Justice Department has enforced the ADA against entertainment and recreational websites that provide augmented reality applications. Pokémon Go fits this statutory description thus, it must be accessible to physically and mentally disabled persons to avoid a Title III violation. Skeptics might counter that the ADA allows firms to avoid Title III compliance by demonstrating that the required accommodations impose an undue financial burden on the business. Compliance with Title III, though, would not impose an undue burden on Nintendo because the firm is projected to bring in over 1 billion dollars in gross revenue during fiscal year 2017. Moreover, Nintendo can easily eliminate the need for players to move around their environment by making code adjustments to the geo-spatial placement of augmented reality objects.

New technologies yield new problems. Pokémon Go is not an exception to this rule. Readers may be unable to resist the urge to “catch’em all.” One can only hope that this article stops someone from catching a lawsuit instead.