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Could Augmented Reality Fuel Your Personal Injury Practice?

By Casey C. Sullivan, Esq. on August 17, 2016 | Last updated on March 21, 2019

Augmented reality takes the real world and graphs a new universe on top of it. Unlike virtual reality, augmented reality doesn't remove the outside world, it just adds a new layer. You can use your phone to spot a Pikachu on the sidewalk, for example, or strap on some goggles and start crafting a virtual sculpture in your living room.

The most common AR application these days is, of course, Pokemon Go, the new AR app that lets you catch make-believe monsters in the real world. But by creating a new layer of reality, one that could lure users into potential dangerous situations, AR companies could be exposing themselves to liability for users' personal injuries.

Augmented Reality, Easy Crime

In the five weeks since Pokémon Go has been available, there have already been a series of Pokémon-related injuries and crimes. Because the game is location-based, users must actually walk around to find and imprison wild Pokémon. And those walks can lead players into dangerous situations.

Soon after the game was released, for example, a group of teens was arrested for using the app to lure robbery victims. Then, 10 days ago, San Francisco saw what might be its first Pokémon murder. A 20-year-old man was shot and killed while playing Pokémon Go near the city's tourist attractions, though it's unclear what role the game (or the phone the victim was playing it on) had in the tragedy.

Time to Open an AR Practice?

Of course, most Pokémon Go players, or augmented reality users generally, won't be exposed to regular risk of robbery or death. But injury could be relatively common, as distracted AR users wander into traffic, are drawn to hazardous areas, or drift out to sea.

Niantic, the company behind Pokémon Go, has taken several steps to limit its liability in such cases. There is, of course, users' assumption of risk as a defense, as well as the provisions of Niantic's terms of service. That TOS disclaims liability and requires users to agree that they are responsible for their own health and safety while using the game.

But that might not be enough to shield AR-makers from liability. Pokémon Go "may result in liability for luring players into precarious scenarios," Celina Kirchner, an advertising, insurance, and technology attorney, explains in Geek Wire. And in states where property owners have the right to kill trespassers under certain conditions, many places could become precarious to the unwitting AR trespasser. Kirchner writes:

If players are injured while pursuing goals created by the game, the liability may fall on the creators' shoulders should they be injured (or killed) while doing what the game seemingly grants them permission to do. It could even be argued that the game itself lulls players into a false sense of security. After all, if Niantic placed a Poké Stop in a condemned building, one would assume it must be safe enough for a hopeful young Pokémon trainer to enter for just a few minutes.

So, should you open up a brand new Pokémon or augmented reality practice? Maybe give it a second. At this point, most AR tech is still in its infancy, with too few users to provide a steady stream of augmented reality injuries. Even with Pokémon Go's massive success, there have been few lawsuits. One of the few lawsuits filed against Niantic so far, comes not from users injured while chasing a rare Snorlax, but by private property owners who've been swarmed by (presumably uninjured) Pokémon players.

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