By Nicholas Resetar/ Attorney
Unless you’ve been living under a rock, you’re probably aware that the mobile-based augmented reality game, Pokemon GO, has taken the world by storm. This manifests itself daily in oblivious players with their heads glued to phone screens as they repeatedly walk into traffic, walls and even off a cliff, in one case.
Many food service businesses are equally ga-ga over GO, thanks to the increased foot traffic the game can bring in their doors when a business makes itself part of the game’s "geography" by purchasing rights to become Pokemon lure modules or allowing the game’s maker, Nintendo, to put so-called "gyms" on their premises to attract players.
So yes, the game can be good for business, but as a restaurant operator you should be fully aware that Pokeomon GO can also affect everything from your civil liability to customers and employees, to your insurance premiums and risk management costs.
The civil liability cloud hanging over Pikachu
That’s right, with added foot traffic comes added risk. Likewise, in the case of Pokemon GO, the quality of this foot traffic is inherently "distracted," as so many news reports of game-related accidentshave made clear.
Here then, is the reality of the situation for restaurant operators who choose to play into the Pokemon GO phenomenon: If your customers are playing Pokemon GO on your business premises, there is a likelihood that injuries can and will happen.
As a restaurateur you already are well aware that customers can and do slip and fall. So as an attorney, I would advise you to fully consider the question of whether you really wish to compound this ongoing concern with the added distraction of Pokemon GO play.
For instance, consider the customer who is injured while playing Pokemon GO in a scenario where a less distracted person would have been unscathed. I assure you the plaintiff’s counsel will neither care, nor heed that fact, when proceeding to file a claim against your restaurant in relation to any game-related injury incurred on your premises.
Yes, you could defend the claim based on the notion that the distraction caused by Pokemon GO created the situation resulting in the accident, but this only opens you up to more questions, including queries about whether you were aware customers routinely played the game on your premises.
If you were, did you take extra precautions to ensure their safety? In fact, if your business actively promoted the game and encouraged customers to play it while they were at your restaurant, it’s a good bet you will have no adequate defense for not taking additional measures to protect customers from harm.
Granted, we have yet to see the first court case around this issue. However, it is safe to assume that the courts will find that businesses that use the Pokemon GO game to attract business cannot then also simply disavow all risks associated with the marketing tool.
The bottom line then, as far as the law is concerned, is that if your restaurant is capitalizing on the Pokemon GO craze, remember that there are risks associated with the game. Weigh those risks carefully against the potential rewards and if you choose to "go" with Pokemon GO, just know that in the eyes of the law you "gotta protect ‘em all" if your customers "gotta catch ’em all."
Nicholas Resetar is an attorney with Roetzel & Andress in Cleveland, Ohio. His litigation practice includes premises and product liability matters.