Pokemon Go Away: Monsters Creating Nuisance Problems
This game has been all the rage since July. Engadget reports over 100 million downloads of Pokemon Go, racking up $10 million each day in revenue for game makers Niantic, The Pokemon Company and Nintendo. It’s a beast. And pretty profitable, despite the legal questions that keep popping up in, for example:
Most players will attempt a bit of care when hunting monsters, and won’t usually play at work, abandon their children or cross streets blindly to net an Augmented Reality (or AR, a real-world environment that has been digitally augmented or enhanced) creature. We hope.
However, there’s a growing legal concern surrounding this game even for people who haven’t downloaded Pokemon Go yet – that of nuisance issues.
The game works using a cell phone’s camera, GPS and gyroscope technology. Game developers programmed “Pokestops” and “Pokemon gyms” into geographical locations – a player who downloaded the app will be able to detect these locations and then be lured into attempting to capture AR monsters and monster-catching weaponry by swiping at their mobile screens at these Pokestops, or take on other players at the gyms.
A homeowner in New Jersey recently filed a class action lawsuit in California against the game’s developers. In the lawsuit, Jeffrey Marder claims Pokemon Go developers:
- Programmed many of the stops and gyms on or near private property;
- These stops and gyms were created without the property owner’s permission; and that
- Trespassers are inhibiting the owners’ enjoyment and use of their properties, constituting nuisances.
Marder cites several other property owners facing nuisance problems because of the game, including a Massachusetts homeowner who tweeted his experiences of living at an unauthorized Pokemon gym. Three days after the games release, Boon Sheridan counted over 30 people approaching his property on foot, not to mention a marked increase in vehicular traffic – all in the name of the game.
The actual number of members of the class action is as yet unknown. But what are the chances of Marder succeeding?
Monsters in the Yard: Pokemon Go Spawning Nightmares for Homeowners, Businesses
Property owners may bring common law trespassing suits against individuals who set foot on private property without permission, or they may file public nuisance claims similar to Marder’s suit above.
Another example of a public nuisance claim would be the City of Irwindale’s lawsuit (now dropped) against the makers of Sriracha hot sauce, Huy Fong Foods Inc. The city claimed the sauce’s odor irritated residents’ eyes, noses and throats. One Irwindale family claimed a need to move a birthday party indoors because of fumes –affecting that family’s enjoyment and use of property.
In any case, private and commercial property owners have the right to protect their holdings, and their enjoyment of such holdings.
For business owners and governments that own or manage properties, whether they be coffee shops or landmarks like the Washington D.C. Holocaust Museum, there is a duty to keep environments safe for visitors. Businesses and tourist sites may be covered by a commercial general liability policy – but that doesn’t mean property owners or managers should turn a blind eye to potentially escalating problems caused by AR games like Pokemon Go.
Homeowners can always pursue individual trespassers, but that could become costly and time-consuming when so many encroach on a property. And neighbors close to a Pokestop or gym may have their own beefs because of increased vehicular and foot traffic.
Whether a private or commercial property owner, there are some alternatives to suing the game makers or Pokemon Go players:
- Submit a Pokemon Go request form. The form can be used whether you want to add a stop or gym to a property, or remove one. No word yet on how effective this method may be, but if things do come to a litigation phase, proof of a request, or repeated requests, may help your case.
- Post signage. No trespassing signs may deter many players, and liability may be greater for a trespasser that ignores an explicit warning.
- Enlist help from local governments. Increased traffic of any kind can congest roads and hinder access for emergency and utility services. Convincing city officials to help could carry more leverage.
Nicholas Kanter is a Real Estate and Business Litigation attorney.