Since the release of the smartphone game, “Pokemon Go” in early July, it is not unusual to see people, often traveling in packs, walking around the city, going to places that previously had little traffic. The Pokemon Go craze has people getting exercise and meeting new people as they crisscross the city looking for the little animated Pokemon creatures.
But there may be a downside. Nationally, police have received numerous calls from residents about possible burglars or other strangers prowling neighborhoods and walking on and through private property. Some players have expressed worries that the game could result in a fearful property owner pulling a gun – a scenario that could fall into a legal gray area in the nearly two dozen states with “stand your ground” laws. These laws allow people wide latitude to use deadly force when they believe they are in danger. These players might be right to be worried – by trespassing on private property, they could face arrest for criminal trespass or worse, as the property owners may have no idea why the players are on their property. Generally speaking, trespass is intentionally entering-or remaining on-someone else’s property without the owner’s consent. This is true for both private property and public property, which can be “closed” at any given time. On the flip side, property owners need to be careful about inviting Pokemon Go players onto their property to play the game.
Property owners essentially owe no duty of care to a random trespasser. However, if you know that people routinely trespass on your property, you may have to exercise reasonable care to warn or protect against known dangers-the level of care varies by state. So if you know that there’s a PokéStop on your property-or that people take shortcuts across your property to scurry to a local PokéStop-that’s going to apply to you. This is especially common when it’s children, or adults acting like children, who are doing the trespassing.
If someone isn’t trespassing, under traditional tort law that person is known as either an invitee or a licensee. An invitee is someone who has an express business purpose for being there (a paying customer). A licensee is just someone who’s there (like a Pokemon Go player). In the hierarchy of duty of care, the owner generally owes a higher duty to the invitee customer than the licensee Pokémon Go player. But there can still be liability there. Further, there’s a modern trend amongst judges of eliminating the distinction between invitees and licensees. That said, both business proprietors and private property owners should think twice about putting up a sign along the lines of “Pokémon Go players welcome here!” instead of “No Trespassing”-it may result in a higher duty of care.
It’s true, every time the app is opened, a warning from game maker Niantic pops up, telling players to be aware of their surroundings. Players must also agree to fine print saying they cannot enter private property without permission. There’s also a disclaimer that says Niantic is not liable for any property damage, injuries or deaths that result while playing. Gamers are also being warned to watch for traffic while playing and not to drive while on the app. It is unclear what impact, if any, these warnings are having on the players. For example, a local family, who owns property upon which there is a training gym for the players, had no idea why there was so much activity at their home. Initially, the family believed that they were being stalked by strangers, who would park in front of their home. Upon learning about the placement of the gym, in order to discourage players from entering their yard, the family started placing dog waste in the path of the players. This is seemingly the most benign method of discouraging the activity – other players have been robbed or injured in their pursuit of the wily creatures.
If you are a Pokemon Go player, you should always be aware of your surroundings and be mindful of the trespassing issue as you explore different parts of the city. If you walk into traffic, you are at fault! If you trespass onto someone’s property and cause damage, you would be liable for that damage! If you are a property owner, be thoughtful about how you handle the issue of Pokemon Go players – and whether or not you really want them playing on your property or are going to give them the dog poop treatment.
