Mobile gaming has become a big phenomenon in recent years. Games, like other content on a cell phone, can be distracting. But some games are especially so. Pokémon Go and other “augmented reality” games of its type work by overlaying game elements on the real world. Players advance in the game by exploring for virtual objects to interact with using their phones.
The potential for “distracted walking” accidents is brought to players’ attention when starting up the game app. Pokémon Go’s loading screen warns players to “Remember to be alert at all times. Stay aware of your surroundings.” And before playing, players are required to click-through warnings like, “Do not enter dangerous areas while playing Pokemon Go,” and, “Do not play Pokémon Go while driving.”
Developers protect themselves against liability
These games also require players to agree to terms of service that provide that players play at their own risk and disclaim liability for personal injuries that occur while playing. Because a user must affirmatively agree to the terms of service before being allowed to play, chances are good that this type of “click-through” contract will be enforceable in court. This most likely means that the developers of games like Pokémon Go aren’t likely to be held liable for the personal injuries of players. They have two strong arguments in their favor: first, that the player entered into a valid contract that waived the developer’s liability, and second, that the player assumed the risk of injury by playing in a dangerous manner.
One can draw parallels between augmented reality games and virtual racing apps. Someone who stares at a phone while walking risks all kinds of injury, from simple trip-and-fall accidents to walking in front of an oncoming car. Like riding a bike, there are risks inherent in not paying attention to your surroundings.
A careful developer will make sure to avoid placing game elements in places that are inherently dangerous, because doing so could expose them to claims that they deliberately encouraged players to take risks. Pokémon Go players are unlikely to find important game elements located on an airport’s runway. However, a developer could face liability if it knows that an existing game feature is located in a place that has become dangerous, for example by being turned into a construction site.
Playing games could reduce potential compensation
Someone who is injured while distracted by a game can expect their distraction to play a role in any lawsuit they bring against the person who caused the injury. Nevada’s modified comparative negligence rule provides that an injured plaintiff’s final award will be reduced by the percentage of fault that a jury or judge concludes was due to the plaintiff’s own negligence. NRS 41.141. For example, if a Pokémon Go player ignores a red light and steps directly in front of an oncoming car it’s likely that at least a portion of the fault for the resulting accident will rest with the player, even though the driver may have fault for not swerving or stopping.
Bear in mind that the mere fact that someone was playing an augmented reality game when an accident occurred isn’t conclusive by itself. An experienced personal injury lawyer can review the specifics of an accident to determine the best path forward for an injured client. The law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area for over 45 years. Our attorneys are available to answer your personal injury questions. For a free consultation reach out to us today at 702-388-4476 or contact us through our website.