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For those of us who grew up in the 90’s, Pokemon was a series of kids’ video games and cartoons from Japan. I was a little too old for the original Pokemon craze, but my younger siblings were into it and the whole thing always seemed like harmless fun.
Since its introduction into the U.S. in 1996, Pokemon has waxed and waned in popularity, but has always maintained a relatively dedicated following over the years as new games have come on the market. However, nothing could have prepared the world for the phenomenon that is Pokemon Go. According to the 21st Century’s repository of all human knowledge, Wikipedia: “Pokemon Go is a free-to-play location-based augmented reality mobile game developed by Niantic and published by The Pokemon Company as part of the Pokemon franchise.” For the uninitiated (such as myself), the game allows players to capture, battle, and train virtual creatures, called Pokemon, who appear throughout the real world. It makes use of GPS and the camera of compatible devices.
Pokemon Go debuted on July 6th, and it is estimated that it already has at least 21 MILLION daily users. For some perspective, at the height of its popularity, Candy Crush Saga had about 20 million daily users. On average, iPhone users are spending more time each day on the Pokemon Go app (33 minutes) than they are on apps for such social media giants as Facebook (28 minutes), Snapchat (18 minutes), Twitter (17 minutes) or Instagram (15 minutes). All of this has translated to stacks of cash for Nintendo, which has seen its market value increase by $7 billion (with a “b”) in the past two weeks.
While all of this in interesting, it doesn’t speak to the question of how Pokemon Go could get you sued. The answer comes from Wikipedia’s description of the game. It says people playing Pokemon Go are supposed to capture, battle and train creatures that “appear throughout the real world” – this includes on private property.
The potential problem for landowners comes from the legal doctrine called “attractive nuisance.” Under this doctrine, a landowner is subject to liability for physical harm to children trespassing on their property caused by an artificial condition upon the land if:

  • The place where the condition exists is a place the landowner knows or has reason to know that children are likely to trespass;
  • The condition is one the landowner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children;
  • The children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
  • The utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
  • The landowner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

The question therefore becomes whether the “existence” of an augmented reality Pokemon on your private property creates an attractive nuisance. If the answer is yes, and a child is injured or killed in scaling a fence or participating in some other dangerous activity on your property while trying to bag a rare Vaporeon Pokemon (yeah, I looked that up), then you could be held liable.
Now, as you might guess, the law of Pokemon Go and augmented reality in general is what we in the legal business would call developing. This means it is so new that we’re not real sure where it will go yet. Some interesting case law applying to specific situations is surely coming down the pike.
With that being said, the law of attractive nuisance is not new. More traditional attractive nuisances you may have on your own property are things like:

  • Swimming pools and fountains (empty or filled with water)
  • Machinery (i.e. lawnmowers, gasoline pumps, etc.)
  • Wells and tunnels
  • Dangerous animals
  • Paths and stairs

It’s always a good idea to take proactive steps to avoid liability, instead of reacting after the fact. This is certainly true in the case of an attractive nuisance. As such, here are some smart steps to take to protect yourself:

  • “No Trespassing,” “Warning,” or “Caution” signs are certainly a good place to start. However, sometimes they aren’t enough to alleviate risks, especially when a child visitor (or trespasser) is not old enough to read. Including a picture on the sign may help.
  • If you have a swimming pool and your yard is not fenced in, building a small fence or enclosure for the pool is a smart idea. The fence should be locked to prevent trespassers from accessing it. You should also keep the pool covered if it is reasonable to do so.
  • If an object is too large to be stored when not in use (such as a trampoline or play set), you should try to block access to it and definitely use a warning sign with a clear picture on it as well. Trampolines in particular can cause serious injuries, as you may be surprised to learn that children often tend to bounce too high and can land on them (or off of them) the wrong way.
  • Put away potentially dangerous objects (such as power tools), when not in use. If such objects are too large or cumbersome to move, then at least make sure they are turned off and unplugged, that there are guards on blades and other sharp edges, and that you’ve taken any other reasonable precautions.
  • If you have objects like old refrigerators or wood piles, store them in a locked shed or some other difficult to access place, so that children aren’t tempted to play in and around them. For appliances like refrigerators and washing machines that are not in use, get rid of them, or at least remove the doors to ensure kids don’t crawl inside and get stuck.
  • Have sufficient insurance. This may go without saying, but buying and keeping sufficient insurance can save the day if something terrible does happen.
  • Establish an LLC to own your property. There are often tax reasons not to do this with your personal residence, but if you own an income property or undeveloped land, then establishing an LLC, deeding the subject property into the name of the LLC, and maintaining and doing business with the LLC properly, is great way to make sure your personal assets aren’t at stake if a tragic accident does occur.

The Pokemon Go craze will surely come and go, but keeping yourself out of lawsuits never goes out of style. If you own real estate, make sure you take the necessary precautions to protect yourself, your assets, and your family’s future from the liabilities associated with your investment.