Unless you do not have any contact with children and have been living off of the grid for the past few months, you are likely familiar with the new Pokémon Go! app that has children and the young at heart excited about exercising. For those unfamiliar with the program, Pokémon Go! is an app downloadable to a smart phone that immerses user in a sort of digital fantasy world:
- The object is to find and locate digital monsters called Pokémon;
- These monsters are (according to the game’s premise) hiding in plain sight in our own world;
- Through the Pokémon Go! app, you are able to find and see these monsters (the app essentially takes the real world you see through your phone’s camera feature and overlays it with the information from the Pokémon fantasy world);
- Once you find them, you must capture them using digital, fantasy tools contained in the app.
The game has been a huge success so far, but has also been linked to some serious personal injury accidents in which pedestrians and motorists harmed themselves and/or others by paying more attention to the app than their surroundings. The Pokémon Go! app warns users about the dangers of trying to play the game while walking or driving and advises that players use the game at their own risk. Is this sufficient to alleviate the developers of Pokémon Go! from liability for the injuries of players and others injured on account of the game?
Assumption of Risk Doctrine Generally
A personal injury doctrine called the “assumption of risk” doctrine may provide some protections to the developers. This doctrine holds that a participant of an activity who is aware of the activity’s dangers and chooses to participate in the activity in spite of these dangers “assumes the risk” that he or she will be injured or killed. This doctrine is invoked frequently when amateur sportsmen and sportswomen undertake a new activity like rock climbing, whitewater rafting, or jet-skiing. In most states, an injury victim who “assumes the risk” from a defendant and who is thereafter injured in the activity is not able to sue the defendant-business or defendant-individual.
Kansas and the Assumption of Risk Doctrine
Some may claim that users and players “assume the risks” associated with the game by agreeing by the terms and conditions of the game (players must accept these terms and conditions when initiating the game, otherwise they will not be able to play the game). Suppose a lawsuit is initiated in Kansas against the developers of the Pokémon Go! game after an adult walks into traffic while playing the game. The adult alleges that the game developers were negligent in not putting additional warnings or safety features into the game, while the developers allege that the adult “assumed the risk” of injury by accepting the terms and conditions of the game.
If such a case were to be decided according to Kansas law, the defendants’ assertion of the assumption of risk doctrine would be ineffective. This is because the Kansas Supreme Court struck down the doctrine in 2014. Instead, the Kansas Supreme Court held that any “assumption of risk” plays into the court’s general comparative fault scheme. Any knowledge or assumption of risk by the injury victim will be considered along with all other factors in determining who is primarily at fault in causing the crash.
Michael R. Lawless is a Kansas City Personal Injury Attorney. Contact his office at (800) 734-3771.