The quest for Pokémon, Pikachu, Psyduck and other creaturescontinues, but many of the more than 15 million players who havedownloaded the app are placing themselves and othersin danger.

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In their zeal to reach the next level, capture the next creatureor find Lucky Eggs, they are walking into traffic, trampling onprivate property and exposing themselves to unsafe conditions.

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The game recently claimed its first accident victim when28-year-old Steven Cary slammed his car into a tree while lookingat a special Pokémon on his app. He looked down for a second andwoke up later in an ambulance, according to a Facebook post. Hiscar hit a tree and he suffered a broken ankle and cuts to his legs.In another incident, a player parked his car illegally to catch aPokemon and the car was struck by a second vehicle.

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Who’s liable and who pays?

When incidents like this occur, who is responsible and whoseinsurance carrier has to pay? In all likelihood, San Francisco-basesoftware developer Niantic Labs didn’t anticipate the level of dangerassociated with a game where players wander out into traffic,travel into dark, unfamiliar areas late at night or drive whilechecking their game “for just a minute.”

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However, the company could be found liable under a generalnegligence claim filed by a homeowner, school, church or museumthat is damaged by intrepid players seeking a new Pokémon, explainsJeremy Rogers, senior counsel with Seattle-based Smith Freed &Eberhard P.C. He also said that Niantic could potentially be atrisk under a concurrent negligence or joint tortfeasor theory.

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In many cases, a commercial general liability or businesspractice insurance policy may cover property damage caused byplayers, or even the player’s homeowner’s liability coverage mayapply.

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“If this property is damaged by others, the insurance carriercan institute a subrogation action if the property owners submit aclaim, or the property owner could file suit against thetortfeasors directly,” says Rogers.

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Line between digital and physical worlds


“Augmented reality games raise a number of legal issues becausethis sort of technology really straddles the line between thedigital and physical worlds,” says Jim Carter, of counsel with theWashington, D.C., office of Blank Rome LLP. “Cyber security law is catchingup and evolving with events that involve the digital world.”

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“Liability will depend on the facts of a given case,” addsCarter. “A key factor is whether or not the developer knew or hadreason to know of a particular situation and failed to act or actquickly enough.”

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As part of the end-user license agreement that everyonedownloads but rarely reads, the user consents to arbitration toaddress any disputes that arise and waives any right to a jurytrial or class action lawsuit. However, Carter said he believesthere will be bystanders who are not playing the game and have notagreed to the end-user license agreement, who may file suit againstthe developer. The same is true for children who download the app,since they would not be subject to arbitration.

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Waiver option


Players do have the option to opt out of the waiver, but must do sowithin 30 days of accepting the terms of service agreement and itmust be done in writing either via regular mail to 2 BryantStreet, Suite 220, San Francisco, CA 94105, or an e-mail to[email protected].

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Niantic could also be held liable for the data it collect ongamers. It must comply with the Children’s Online Privacy ProtectionAct which imposes specific requirements on entities thatprovide services directed at children under the age of 13 and howtheir information may or may not be used. “Niantic could haveliability in terms of data collection or from data breaches,” saysCarter. He says any developer would be wise to review their cybercoverage and any limitations or exclusions.

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PropertyCasualty360.com reached out to Niantic to ask how itviews its liability with the game and will update this story whenand if the company responds.

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Pokemon Go warning

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In this Tuesday, July 12, 2016 photo, a sign is shown at theNational Weather Service in Anchorage, Alaska, informing Pokemonplayers that it's illegal to trespass on federal property. Thestaff started noticing an uptick of people in the parking lot afterthe location was included as a gym in the popular game. The"Pokemon Go" craze across the U.S. has people wandering into yards,driveways, cemeteries and even an off-limits police parking lot insearch of cartoon monsters, prompting warnings that trespasserscould get arrested or worse. (Photo: Mark Thiessen/APPhoto)

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Other liabilities

Homeowners could also face liability if someone trespasses intheir yard and is injured.

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“If players come into your yard, they’ll probably find an oldswing set, a trampoline or a pool,” says Eric Narcisco, CEO andfounder of Albany, New York-based Effective Coverage, a provider of renters',home and auto insurance. Those are known as attractive nuisances,and if a ‘trainer’ is tempted by them and gets hurt, it could putyour coverage at risk.”

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“Trespassing on private property is a potential problem,”concurrs Chris Tidball, senior director-casualty solutionsconsultant for San Diego-based Mitchell, whichprovides technology and information software, “and there may besituations where property owners take the law into their own hands.Not only could this result in a tragic situation, but it wouldembroil the property owner in potential litigation.”

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Tidball agrees that these situations could create issues forNiantic as well. “I definitely see the potential for litigationagainst them. After all, they are the deep pockets. It would makesense to pursue them. This would also apply from a subrogationstandpoint, whereby insurers may be required to pay claims that arecovered under the policy, but may have a right of recovery againstthe manufacturer.”

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Negligence consideration


From a claims perspective, Tidball says negligence would also be aconsideration in determining liability. In the case mentionedearlier where a gamer parked his car illegally before it was hit,an adjuster would examine it just like any other parked caraccident. “There is certainly some liability on the illegallyparked car, but generally speaking the majority of the fault wouldbe with the striking vehicle. In every claim we examine duties owedand duties breached, and then determine the degree of breachagainst each party. Some carriers enlist the assistance of softwarewhich helps the adjuster to properly apportion liability.”

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In cases where a minor causes the damage, his or her parentscould be held liable, but Tidball says it will vary byjurisdiction. Consider a child playing the game who walks in frontof a car without looking up and gets hit. The pedestrian is clearlyat fault, but some jurisdictions will assess liabilitycomparatively if the driver was going too fast or was on acellphone.

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As technology affects yet another aspect of claims, insuranceadjusters will continue to apply the terms of a policy to eachcase, but there may be some interesting legal issues raised in thepursuit of the elusive Pokémon.

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Related: Playing Pokémon Go? Here are 3 kinds ofinsurance you need

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