By Andy Tiwari
Many thought the popular Pokémon phrase, “Did you “catch ’em” was a fad of the past. As it turns out, Pokémon is still going strong, and other gaming companies are in a competitive race to provide gamers better experiences and augmented reality. For instance, the notoriously secret company, Magic Leap, recently created new augmented reality goggles that promise an enhanced reality interaction in the real world. What does this mean for your business? Are you responsible for these people if they injure themselves on your property?
Pokemon players highlight the new challenges well. Last year, many retail businesses that happened to have Pokemon related features in their vicinity saw increased sales from players aimlessly wondering into stores looking for Pokémon monsters via GPS, which often pop up in random places. According to one surveyg, players purchased an average of $11.30 around these businesses. It’s estimated that 82 percent of Pokémon players entered a business for non-business reasons while playing the game.
In addition to Pokemon, Magic Leap’s new devices promise enhanced reality interactions with games and other programs in the real world. Through the use of a “light field,” these devices may alter how users perceive their surroundings. It’s easy to see how mixed-reality devices may cause users to lose their normal inhibitions while interacting with the real world. Pokémon Go is also about to release its next generation of its game. This trend toward augmented reality could create a new set of rules for business owners who generally owe legal obligations known as premises liability – either as landowners or commercial tenants – for people who walk onto their property. What if the individuals injure themselves?
Generally, people walking onto a business owner’s premises are categorized in one of three classes: invitee, licensee, or trespasser. Invitees are often patrons and employees who enter for the mutual benefit of the owner/renter and themselves; licensees are often guests who enter for their own benefit; and true trespassers are on property without permission or after being asked to leave.
Businesses will generally owe an invitee an obligation to warn them about dangerous conditions on the property that the owner knew about or could have known about after a reasonable inspection. Licensees must show a business owner knew about a dangerous condition to recover on a claim. In either case, a business can protect itself by fixing the condition or warning the licensee or invitee, which is why you often see the “wet floor” cones in supermarkets where an employee is busy mopping.
Trespassers who enter without the legal right to do so have the least protection, and businesses must generally avoid intentionally injuring the trespasser or allowing harm to occur by gross negligence (where a business owner knows about a highly dangerous item and acts with indifference to the rights, safety or welfare of others).
In addition to trespassers, business owners should be wary of the attractive nuisance doctrine, which may allow a claim where a minor harms themselves because of an “unnatural condition” on the property. While no one has successfully pursued a claim for a digital superimposition upon the property, it’s foreseeable that a business owner who knows that people are being lured to its junk yard with an open pit because of Pokemon might face extra scrutiny.
In 2017, there were numerous stories of how games like Pokémon were problematic for small firms and property owners. A Detroit couple filed a class-action lawsuit against Pokémon Go and Nintendo because of numerous players trespassing on their property while playing the online game. The couple live across the street from a popular Pokémon hotspot that’s lured hundreds of players.
In addition, a New Jersey man filed a lawsuit against Pokémon because gamers were knocking on his door to “catch” a Pokemon in his backyard. He alleged that the company was placing Pokémon spots on his property without his consent and therefore trespassing on his private property. Pokémon since fixed the problem and allows individuals to request online to have “PokeStops” removed after receiving numerous complaints.
It’s easy to think of Pokemon players as trespassers – after all, they usually appear without permission. But can they become licensees or invitees? It’s definitely possible if they purchase a product from a business while playing the game. If so, business owners then have enhanced responsibilities to ensure the player doesn’t become injured, or worse, die. And injury is apparently a real possibility: a website actually tracks alleged Pokemon Go deaths and injuries and claims 16 deaths and 55 injuries through November of 2017.
Business owners should consider trespassing policies to at least make it clear that gamers are trespassing. To enforce trespassing polices in Texas, published notice is key, but business owners or residents can also ask the trespasser to leave. If the person refuses, you can use reasonable force, however, if the person doesn’t pose a threat, whatever force you use could be determined unnecessary and lead to liability. In most cases, the police are called if the trespasser refuses to leave, but the police won’t arrest the trespasser if they are not considered threatening, and the odds are high that the average player will move along. Owners should post the steps on business websites that will be taken to remove a trespasser you do see, beginning with a verbal warning. The last step can include calling the police. Not only should this policy be written for employees to read, it can be useful to post it on the company website in a visible place – especially if you have a history of unwanted visitors.
But it’s the individuals you can’t confront that business owners should worry about. Consider “No Trespassing or Visiting without a Business Interest” signs which clarify that augmented reality users on the premises are trespassing. Some savvy gamers have been known to research a business online before entering to search for coveted items in the game, so make sure your anti-trespassing policy is not buried on your website but instead can be found with a simple search.
Even so, it may be necessary in the future to monitor whether augmented reality is making your premises a hotspot for trespassers, who could be children playing a game. It’s the reality of the next step in technology – bridging the virtual and real world.
Andy Tiwari is principal and named partner of Tiwari + Bell PLLC and can be reached at www.TexasLegalPros.com or call 210-417-4167.