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August 2, 2016
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Noses buried in their smart phones, armies of Pokémon Go players scour neighborhoods in search of elusive cyber monsters lurking in real locations identified by the wildly popular game.  Seeing a way to “lure” (in Pokemon Go parlance) customers, some retailers are already using the paid feature in the game to attract players to their establishments.   But business owners are well advised to take precautions so someone’s “augmented reality’’ doesn’t lead to real-world liability issues.

Trespassers and Attractive Nuisances

From a hotel that expects walk-ins to a law firm that primarily deals with clients who have appointments, almost all businesses that deal with the public need to be aware of potential liability from Pokémon-chasing visitors.

Although the law considers someone who comes to your establishment without permission or a legitimate business purpose a trespasser, there is still a chance that a business owner can be held liable for injuries relating to Pokemon Go players, regardless of whether those injuries are incurred by a trespasser.   Just as a homeowner needs to put a fence around a swimming pool to prevent injuries to neighborhood kids – who may reasonably be expected to jump in even if not invited – businesses would be well-advised to see if their location may attract Pokémon Go players.  Pennsylvania law deems certain conditions on property to be “attractive nuisances’’ – meaning you don’t want the visitors, but you should reasonably be aware that some aspect of your property may draw them in.  Since there is no case law on this issue as of yet, it remains to be seen if Pokemon Go will be deemed an attractive nuisance.  Perhaps the simplest way to determine if this is an issue for you is by downloading the game and determining if the hunt includes your premises.  If your business is in the Pokémon universe, however, you have options.

Be Welcoming and Be Careful—Business Invitees Bring Higher Likelihood of Liability

When individuals enter your business for a legitimate purpose, they become business invitees, and there is a higher likelihood that liability will be imposed if an injury occurs.  Individuals who come to your business because of the use of the Pokemon Go marketing options are likely  business invitees.

Should you decide to be a PokeStop or a gym – where players gather to do cyber battle – the same precautions apply as when you invite any client or customer into your business.   That means fixing any potential hazards or posting warnings, such as “wet floor’’ signs, and controlling access to sensitive or potentially dangerous areas.  It is good to keep in mind that players will be walking around distracted as they check their phones for potential Pokémon sightings.  Deciding to welcome Pokémon players, however, is essentially no different than any other campaign to entice the public, and you are likely doing these things already.

Opting out

Does the idea of Pokémon players beating a path to your door leave you cold?  You have a few options.

Signage is a possibility, but can certainly come off as unwelcoming. I recently saw pictures online of signs ranging from “Pokémon are for paying customers only’’ to a blunt “Pokémon Games & Activities are Prohibited.’’

Even if you post a sign, you’ll still want to contact Niantic (the creator of the application) and ask them to remove your location from the game. To request removal, go to www.support.pokemongo.nianticlabs.com and under “Troubleshooting’’ click on “Reporting PokeStop or Gym Issues.’’ Don’t forget to keep a copy of what you send in – it’s always good to have documentation just in case.

Insurance Coverage

Commercial general liability insurance generally covers bodily injury and property damage that is caused by an “occurrence” that takes place in the “coverage area”.  In this instance, the coverage area would be your business.  An occurrence is generally defined as an accident, so most commercial liability policies should cover claims relating to injuries incurred while playing Pokémon Go on your property.  It pays to check your policy language, however, and if you’re not sure about your coverage, check with your broker or attorney.

Should an accident happen, tell your insurer immediately. While specific policy language may differ, it is the responsibility of the insured to notify the insurance company in a prompt and timely manner. Failure to notify your insurance company within a certain time period may even be grounds for denying a claim.

At last estimate, over 9.5 million Americans are playing Pokémon Go.  For business owners, and whether or not you want to join the in Pokémon fun, the publicity of the game is a worthwhile reminder to make sure you’ve made your property as safe as possible for your employees and guests.

Dana W. Chilson is the chair of McNees Wallace & Nurick LLC’s Insurance Group, as well as a member of the Litigation, Financial Services, and Injunction groups. She can be reached at 717-237-5457 or dchilson@mcneeslaw.com

McNees is a full-service law firm based in central Pennsylvania with more than 130 attorneys representing corporations, associations, institutions and individuals. The firm serves clients worldwide from offices in Harrisburg, Lancaster, State College and Scranton, PA; Columbus, OH; and Washington, D.C. McNees is also a member of the ALFA International Global Legal Network. www.mcneeslaw.com | @McNeeslaw | LinkedIn