8/16/2016 by Celina Kirchner
There’s no denying it—Pokémon have taken over the country and, as of the popular app’s launch in more than 30 countries over the past few weeks, the world.
It should be no time at all before we see our first Pokémon Go-related lawsuit. To date, major injuries have occurred in California, New York , and Pennsylvania. All involve players who were clearly not paying attention to their surroundings while playing the game. Many litigators believe it is a matter of “when” not “if” companies developing augmented reality applications begin facing personal injury lawsuits.
Assumption of risk is a likely defense the creators of Pokémon Go would use against a claim that the game developer failed to warn of the dangers of the game. In order to successfully defend using an assumption of risk argument, the developers must show that the injured player either knew, or should have known, about the danger posed by use of the game, but nevertheless proceeded to use it.
However, the assumption of risk defense may also not fully protect Niantic from liability. Assumption of risk is only a partial defense in states like California, Florida, and Washington, where comparative fault principles are applied to strict tort liability claims
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