If you had never heard of Pokémon GO before a few months ago, chances are high that you have heard of it now. The game, which players can download as an app onto their smartphones, has quickly become one of the most popular games ever with over 100 million downloads in its first few months of release. But it has also raised questions of safety and privacy as players have gone on to private property, including property of residential homeowners, to play the game. At least two different class action lawsuits have already been filed against Niantic, makers of Pokémon GO, by homeowners upset about the invasion of privacy they have endured. Given the unprecedented gameplay of Pokémon GO, which combines GPS technology and augmented reality, sending players out into public to play the game, how courts treat these class actions should be closely watched, as such games will likely become more and more common.

How Pokémon GO Works

For the uninitiated, Pokémon GO lets players create avatars who go around looking for “Pokémon” (animated creatures) to capture. What makes Pokémon GO unique is that, rather than having players play on a computer or TV screen, players must take their phones out into public to search for Pokémon creatures on their phone screens in the geographical locations that the gamemakers have placed them.

The game follows the GPS location of the player, and when a player encounters a Pokémon creature that has been digitally “hidden” in the geographical location that the player is at, the creature will appear on their phone screen. This combination of real-world locations with digital enhancements apparent only on a digital device is referred to as “augmented reality,” which appears to be the wave of the future in digital technology, meaning we will see more and more games and similar apps of this nature in the near future.

Homeowners Strike Back in the Courts

By sending players out of their homes and into public to play Pokémon GO, numerous property owners have seen their property invaded by players eager to catch Pokémon. A homeowner in West Orange, New Jersey filed a class action lawsuit against Niantic, alleging that at least five players had entered his property attempting to gain access to his backyard in order to catch Pokémon.

In a second class action lawsuit, a couple in Michigan alleged that the game had turned their private cul-de-sac into a “nightmare” as players have blocked driveways and trespassed on property, and that their repeated attempts to contact the makers of Pokémon GO to ask them to remove the digital Pokémon from their property area have not received a meaningful response.

Augmented Reality and Trespass to Property

Laws regulating the invasion of property are generally based on state-by-state law, but a common principle of tort law is that parties whose property has been invaded by another have a right to sue the parties responsible for the invasion for damages. This is the case even when the named defendants – here, the makers of Pokémon GO – did not themselves trespass on the property but took actions causing the trespass by others to occur.

Because Pokémon GO and future games like it are such a novel development in our society, it will be interesting to see how courts respond to plaintiffs’ claims and how they will assess whether a class action can be formed. As augmented reality games and apps become more popular – which they almost certainly will – what happens in these initial cases can have a lasting impact for years to come.

For more information about bringing a class action, contact the complex litigation attorneys at McCune Wright at 909.572.8019.