Noses buried in their smart phones, armies of Pokémon Go players are scouring neighborhoods in search of elusive cyber monsters lurking in real locations identified by the wildly popular game.
Seeing a way to lure customers, some retailers are already using a paid feature in the game to attract players to their establishments.
But business owners are well advised to take precautions and so someone’s “augmented reality’’ experience doesn’t lead to real-world liability issues.
Trespassers and attractive nuisances
From a hotel that expects walk-ins to a law firm that primarily deals with clients who have appointments, any business that deals with the public falls into the same boat when it comes to needing to be aware of potential Pokémon-chasing visitors.
And though the law would consider someone who came to your establishment without permission or a legitimate business purpose a trespasser, there’s still a bit more to it when thinking about potential liability. You need to think “attractive nuisance.’’
Just as a homeowner needs to put a fence around a swimming pool to keep out neighborhood kids – who may reasonably be expected to jump in even if not invited – businesses would be well-advised to see if they’re location may attract Pokémon players. Hence “attractive nuisance’’ – you don’t want the visitors, but you should reasonably be aware any aspect of your property may draw them in.
Perhaps the simplest way to check is downloading the game and seeing if the hunt includes your premises.
If your business is in the Pokémon universe, you have options.
Be welcoming and be careful
Should you decide that you want to be a PokeStop or a gym – where players gather to do cyber battle – the same precautions apply as when you invite any client or customer. That means fixing any potential hazards or posting warnings, such as “wet floor’’ signs and controlling access to sensitive or potentially dangerous areas.
Deciding to welcome Pokémon players is essentially no different than any other campaign to entice the public. You may want to keep in mind, however, that players will be walking around likely only half paying attention as they check their phones. So make sure to take reasonable precautions to avoid anything that could cause the, shall we say “half-aware,’’ to slip, bump or fall.
Opting out
The idea of Pokémon players beating a path to your door leaves you cold or perhaps your location is featured in the game. What to do?
Signage is a possibility, but do you really want to be unwelcoming? I recently saw pictures online of signs ranging from “Pokémon are for paying customers only’’ to a blunt “Pokémon Games & Activities are Prohibited.’’
Even if you go to the sign route, you’ll still want to contact Niantic and ask them to remove your location from the game. To request removal, go to www.support.pokemongo.
Don’t forget to keep a copy of what you send in – it’s always good to have documentation just in case.
Insurance checkup and heads-up
While most commercial liability policies should cover any injuries or other claims relating to someone getting hurt playing Pokémon Go on your property, it pays check your policy language. If you’re not sure about your coverage, check with your broker or attorney.
Should an accident happen, tell your insurer immediately. While specific policy language may differ, the responsibility of the insured to notify the insurance company is standard. Failure to notify your insurance company within a certain time period may even be grounds for denying a claim.
I recently saw an article estimating 9.5 million Americans may be playing Pokémon Go. For business owners, that mean whether or not you want to join the in hoopla, it’s worth using it as an opportunity to make sure you’ve made your property as safe as possible.
Dana W. Chilson is the chair of McNees Wallace & Nurick LLC’s insurance group as well as a member of the litigation, financial services and injunction groups. She can be reached at 717-237-5457 or dchilson@mcneeslaw.com
