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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

I love games. Especially the type that really engage your mind and force you to solve problems creatively. By all indications, I'm not alone. The video game <a href="http://www.esrb.org/about/video-game-industry-statistics.jsp">reportedly made $10.5 billion</a> in 2009 alone. At one point, the company behind the ubiquitous Facebook games Farmville and Mafia Wars was <a href="http://gigaom.com/2010/04/06/what-is-zynga-worth/">valued at $5 billion</a>.

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So you can bet that games will be among the first commercially successful augmented reality applications. Indeed, it has been <a href="http://gamesalfresco.com/2010/08/30/3-reasons-why-games-are-the-killer-app-for-augmented-reality/">persuasively argued elsewhere</a> that it will be games that take AR into the mainstream.

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But designers of AR games have something to worry about that the console-based gaming companies never really did: physical injury. The following trailer illustrates my point. It's for The Witness, billed as "The First Movie in the Outernet:

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(Before I go further, here's a disclaimer: I don't know anything about The Witness beyond what's in this (fascinating) trailer, and I'm sure there's much more to it. So this post isn't directed at The Witness specifically--only the questions raised by the trailer that the AR gaming industry should consider.)

As the trailer itself admits, The Witness is much more like mobile version of an online role-playing / mystery game than like anything we'd currently think of as a "movie." Using AR-equipped video phones, players roam the physical world "collecting data" and "communicating with other players." Like a walking, talking version of a Choose Your Own Adventure book, the game directs players to different locations based on the choices they make--eventually solving the mystery, or else meeting one of a variety of alternate endings to the story.

But unlike someone playing the console-based Legend of Zelda or the board game Clue, a player of The Witness faces potential dangers in the real world as well. The trailer above shows players in seedy hotels and bars, a disheveled office, climbing stairs in a parking garage during winter, and scurrying through an abandoned warehouse--complete with barking guard dogs--in order to collect the clues necessary to "stay in the game."

Sure, these scenes are probably amped up for dramatic effect. And there are likely safety measures in place that the trailer doesn't mention. But don't they just they just scream with the potential for personal injury? One scene shows a player scanning a room with his phone, looking for clues. What if he gets distracted and trips over something? Will the guard dogs always be there, and if so, will there be a staff member there 24/7 to make sure they don't bite anyone? Suppose a player gets mugged in one of these abandoned buildings, or falls on poorly-maintained stairs? The possible scenarios for injury multiply with every new setting.

The nature of the gaming experience can amplify that risk. The Witness says that players will need to "overcome their fear," as "the borders between reality and fiction dissolve completely." All of which makes the game that much more engaging and enjoyable; suspension of disbelief and an immersive experience are what every good storyteller aims for. But when you're walking around in the real world, you rely on those "borders between reality and fiction" to avoid hurting yourself.

We don't need to wait for mainstream AR gaming to see how courts might apportion liability for game-related injuries. Consider the 2000 decision of the Washington Court of Appeals in <a href="http://www.scribd.com/doc/53212966/Anderson-v-American-Rest-Grp">Anderson v. American Restaurant Group</a>. Plaintiff Anderson "suffered injuries when she slipped and fell while running across the bathroom floor at the Black Angus restaurant in Bellevue to retrieve a piece of toilet paper for a restaurant-sponsored scavenger hunt." Even though a wet bathroom floor is the type of dangerous condition that one might expect to be obvious, the appeals court reversed the trial court's judgment in favor of the restaurant. "[A] jury could conclude," the court explained, "that Black Angus should have expected that patrons darting into the bathroom would not discover or realize the danger of a wet floor because they would be focused elsewhere and in a hurry."

In a similar vein--but with much more severe consequences--is the case of Bob Lord. He was an internet entrepeneur and first-time player of "The Game"--a private, invitation-only, immersive role-playing game remarkably similar to <a href="http://www.imdb.com/title/tt0119174/">the Michael Douglas movie of the same name</a>. As summarized in <a href="http://seattletimes.nwsource.com/html/pacificnw/2008177548_pacificpendgame14.html">this Seattle Times article</a>, "The Game" was an annual "adventure scavenger hunt" in which adult players "would scuba dive, rock climb, sing karaoke with a drag queen and fire automatic weapons ... decode the Declaration of Independence inside a prison and befriend a white rat named Templeton, whose shivering little body carried a message."

The 2002 version of The Game also involved searching for particular GPS coordinates inside "the Argentena Mine complex, a warren of abandoned openings left over from a 1927 silver-mining operation." Lord had gotten little sleep over the 28 hours before the time he entered the mines. Confused by the Game's ambiguous directions, he entered the wrong shaft, and fell 30 feet head-first, crushing his vertebrae and becoming a C3 quadriplegic for the rest of his life. When Lord's family discovered that the Game planners had been warned about mine's dangers beforehand, Lord sued them, and eventually settled for $10.6 million.

The typical AR game of the near future will almost certainly not involve circumstances as dangerous as those in The Game. But as the Anderson case demonstrates, even a condition as mundane and obvious as a wet bathroom floor can become a source of potential liability when game players are sent out into the physical world hunting for clues and competing against other players under short deadlines. AR game designers must take these risks into account when creating their fictional experiences. Although it may present frustrations on a creative level, designers must take all due care not to sacrifice gamers' physical safety for the sake of an immersive gaming experience.

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Brian D. Wassom

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Augmented Reality Games and Physical Injury

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Augmented Reality Games and Physical Injury

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