If you grew up during the height of Pokémon popularity like I did, the recent release of Pokémon Go by Niantic was nostalgic to say the least. It brings me back to the times on my elementary school playground where I was trying to get the best deal for a Charizard card.
Interestingly, these transactions were the beginning of my learning of the negotiation skills I would later use as an attorney.
The release of Pokémon Go has now combined two of the things I find most interesting: a nostalgic childhood memory and the law.
This newly released “augmented reality” app has users up and wandering around to various locations. On a recent trip down to Sherwood one weekend afternoon, I was shocked by how many people I saw wandering around in search of Pokémon.
However, while Pokémon Go is “augmented reality”, it brings along with it many real world problems.
Creating Attractive Nuisance with Pokemon Placement
One problem that can come about for Pokémon Go is the issue of where Nintendo and the app’s developer Niantic place Pokémon and PokeStops.
What happens if a person gets injured on private property while trying to catch a Pokémon? There has been numerous articles surfacing discussing the huge rise of trespassing Pokémon Go users. Such an event could, in theory, be Nintendo and Niantic creating an attractive nuisance on private property through placement of Pokémon
Homeowners with an in ground pools are familiar with the concept of this idea as well. Homeowners with a pool are usually held liable for injuries and deaths that take place as a result of a pool, even if the victim is a trespasser on the property.
In layman’s terms, the theory of attractive nuisance is because of a child’s age something on an individual’s property is so irresistible that a child has to investigate and as a result does not appreciate the danger associated with the action and ends up getting injured. The owner of that property, however, is responsible for the injury even though the child was trespassing.
So does this apply to Pokémon Go?
Wisconsin’s Requirements for Attractive Nuisance
The theory of attractive nuisance states that an owner of land is subject to liability for harm to children trespassing on the land if certain conditions are met. In Wisconsin, the requirements are:
‘…that the…(processor of real estate) maintained on, or allowed to exist upon his land, an artificial condition which was inherently dangerous to children being upon his premises;’
‘that he knew or should have known that children trespassed or were likely to trespass upon his premises;’
‘that the realized or should have realized that the structure erected or the artificial condition maintained by him was inherently dangerous to children and involved an unreasonable risk of serious bodily injury or death to them;’
‘that the injured child, because of his youth or tender age, did not discover the condition or realize the risk involved in going within the area, or in playing in close proximity to the inherently dangerous condition;
‘and that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained.’
McWilliams v Guzinski, 71 Wis. 2d 57, 61-62, 237 N.W.2d 437, 438-39 (1976)(citing Angelier v Red Star Yeast & Products Co., 215 Wis. 47, 254 N.W. 351, 353 (1934)).
Legal Questions that Need to Be Addressed
In the realm of Pokémon Go, several legal questions need to be addressed to know the answer to what the placement of Pokémon means for property owners. Key questions that need to be addressed going forward are:
Is the placement of Pokémon an attractive nuisance created by Nintendo and Niantic?
Is it reasonably foreseeable that users of Pokémon Go, especially children, will ignore fences and other safeguards to enter a property to catch a rare Pokémon?
Do Nintedo and Niantic owe a duty of care to app users not to place Pokémon on private property or dangerous locations?