Pokémon? No!

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Pokémon? No!

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Adam Osieke considers the trespass of land and owners' liability in light of the new Pokémon craze sweeping the nation

The sight is now a familiar one, across towns and cities worldwide. Members of the public wandering, trancelike and guided solely by their mobile phones in the hope of capturing virtual creatures known as 'Pokémon'. Such is the addictive quality of Pokémon Go, the mobile application that augments a live, real world map on the screen of the mobile device with numerous Pokémon and encourages the player to travel to specific locations to collect them.

Certain areas may contain a particularly high concentration of Pokémon, due to the presence of a 'Pokestop', or even a 'Pokegym' (a virtual arena, in which players can enter their Pokémon into sparring competitions). Of course, while the virtual world is free to roam, problems can (and do) arise when Pokestops and Pokegyms are sited on private land in the real world.

Landowners who find themselves in the unfortunate position of having a top or a gym on their property have the option of bringing a claim for trespass against Pokémon players who have ventured onto their land. In reality, however, it is doubtful that any such claims of trespass will be viable. It is fair to assume that Pokémon players are mainly (but not exclusively!) in their teens, hence even if the court were to award more than nominal damages, the prospect of recovery would be very low indeed. They are also likely to be quick on their feet if challenged, which raises the more practical difficulty of identifying the would-be defendants in the first place.

The more significant issue for landowners is the effect of the Occupier's Liability Act 1984, by which they owe a restricted duty of care to trespassers. Specifically, if a Pokémon player were to injure themselves while searching for their prey on private land, the owner would, potentially, be liable to pay damages. With that point in mind, it is worth considering the construction of statutory liability in a little more detail.

In order for a claim to be brought under the provisions of the Act, the landowner must:

'¢ Be aware of the danger, or have reasonable grounds to believe that it exists;

'¢ Know, or have reasonable grounds to believe, that the trespasser is in or may come into the vicinity of the danger; and

'¢ The risk must be one against which, in all the circumstances of the case, the occupier may reasonably be expected to offer some protection.

'¢ The first question to consider is whether (a) the condition of the land makes it inherently dangerous for a trespasser or (b) whether the danger is likely to be created solely as a result of the trespasser's actions.

In Keown v Coventry Healthcare NHS Trust [2006] EWCA Civ 39, the Court of Appeal held that the trespasser did not have a valid claim under the Act because his actions (climbing on the underside of a fire escape) created a danger that would not have existed otherwise.

If the condition of the land is potentially dangerous, however, the landowner should take appropriate action to guard against the risk of injury to trespassers. The question of what is appropriate will depend on where the given situation falls on the spectrum of risk. In some cases, the installation of warning signs alone might be sufficient. In others, it might be prudent to install fencing, or even arrange for a security guard or guard dog.

It would be unwise, however, for a landowner to assume that no risk of liability under the Act exists, even in cases where there is no apparent risk of danger and the subject property is secure. If there is reason to suspect that Pokémon Go is causing individuals to trespass on private land, then at the very least, it would be sensible to install signs to warn them about the consequences of doing so.

In addition to the usual notifications, that signage might also include wording to the effect that entry onto the land is at the trespasser's own risk. While that is not enough to exclude the potential for a claim under the Act, it should help to engage the statutory (and common law) defence that the trespasser voluntarily assumed the risk of injury (Section 1(6) of the Act).

A further practical step that landowners might take is to write to the developers of the app, Niantic Labs, stating that the hosting of a Pokestop or gym on their property is causing (or is likely to cause) acts of trespass and ask them to remove it. It is reported that several lawsuits have been filed against Niantic in America by unhappy Pokestop 'hosts' and so the developer may now respond positively to a cease and desist type letter, albeit sent from outside the jurisdiction.

Adam Osieke is a solicitor in the real estate dispute resolution department at Pemberton Greenish @pg_law