If you have noticed an increase in the number of zombie-like individuals with their faces glued to their phones walking into parks, grocery stores, cemeteries, churches, and even down highways at all hours of the day, you are not alone. The Pokémon Go app has become an overnight phenomenon. Since the day of its launch, it has been among the top-grossing apps in the U.S. App Store. The objective is for the player to capture Pokémon by traveling, preferably on foot, although recent accidents attributed to the game suggest other means of locomotion.
An influx of wandering players has led a St. Clair Shores couple to file a class-action lawsuit against Pokémon Go creators, as well as Nintendo and Niantic. The complaint outlines two counts: nuisance and unjust enrichment. Plaintiffs seek damages, attorney fees, and to enjoin defendants from continuing the "wrongful acts and practices alleged."
Does this couple have a claim? Perhaps. To prevail on a nuisance theory, plaintiffs must prove significant harm resulting from defendants’ unreasonable interference with plaintiffs’ use and enjoyment of their property. The St. Clair Shores couple declares that with hundreds of strangers entering the private park across the street from their home, they no longer feel safe sitting on the porch of their house. The couple found out that defendants had placed numerous Pokémon within the private park. Plaintiffs claim that the players do not abide by the game’s rules to maintain decorum and remain quiet, that they park in front of driveways, and that they trespass on neighboring lawns and gardens. When the couple attempted to talk to some players about their actions in the private park, they were met with harassment and anger.
However, to be liable for nuisance, the Pokémon Go creators must have (1) created the nuisance, (2) owned or controlled the property from which the nuisance arose, or (3) employed someone else to perform an act that they knew was likely to create a nuisance. You can read a more detailed summary of nuisance in Chapter 13 of Torts: Michigan Law and Practice, "Torts to Interests in Property."
Practically speaking, it may be difficult to place the blame on the game’s creators. It will be a hurdle to prove that they necessarily created the nuisance of those specific individuals in the St. Clair Shores park or that they employed someone to act in a way to create the nuisance, so this couple may be out of luck. Ultimately it will be determined by a federal judge in the upcoming months whether Pokémon Go creators can be on the hook for these players’ actions.