Reports of a massive accident caused by a man playing the hottest application, "Pokemon Go" on the highway turned out to be false. However, because the likelihood of such an accident is pretty high, I've decided to analyze whether or not a person killed or injured by such an accident would prevail against the company that developed this application.
In case you're unfamiliar with the application, it involves finding Pokemon characters, which are laid out across the city. The application uses your GPS to track your location, and you can only capture the character if you are physically next to it. Thus, if a Pokemon Go enthusiast is driving on a busy highway, and notices a character, he must stop his vehicle and approach the character with his phone if he wants to capture it. This obviously raises the potential for some serious accidents to occur.
Although a lot of the accidents I deal with on a daily basis are clear cut, such as a driver accidentally rear ending another driver and thus being held solely at fault, the scenario described above would not be as clear cut.
The Pokemon Go player would clearly be at fault, but would likely have insufficient assets to cover a traumatic injury or wrongful death. If the player has zero assets and a $15,000/$30,000 minimum policy limit, his insurance would only be liable for the $15,000 policy limit, unless they offer less than that and are subsequently sued in court. In such a case, they have unlimited liability. However, assuming someone is killed or has medical bills far exceeding the $15,000, the insurance will pay the $15,000 and avoid being liable for a multimillion dollar verdict.
Therefore, as a personal injury attorney, I would attempt to go after the deeper pockets. Commercial policies are often $1 Million+.
In order to predict how a court will rule in the future, attorneys look at how the courts have ruled in the past.
A California case that comes to mind is Weirum v. RKO General, Inc. In that case, a radio station held a contest in which they would announce their DJ's location. The first listener to find the DJ would win a prize. This inspired two listeners to drive recklessly toward a broadcasted location, killing another driver in the process. The plaintiff in Weirum brought a wrongful death action against the radio station. The jury awarded the Plaintiff's family $300,000.00. The radio station appealed.
The Supreme Court of California affirmed the jury’s determination that the defendant radio station was liable under a negligence theory for the "foreseeable results of a broadcast which created an undue risk of harm".
The radio station argued that the listeners acted negligently and it was therefore solely their fault. The court rejected this argument, stating that the radio station should have foreseen that people would act negligently as a result of their contest.
It is important to note that courts in other states have rejected this notion.
I personally believe that in the case of an accident occurring due to Pokemon Go's placement of a Pokemon on the highway, a Plaintiff would have a good case based on the ruling in Weirum. I would take on such a case.
What do you think? Would this be a similar situation? What would you decide if you were on the Jury?