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Augmented Legality
BlogsPublications | July 23, 2014
4 minute read
Augmented Legality

Augmented Reality and the Law of Trespass

Last week I wrote about the real estate as an arena for digital interactions, and suggested that some landowners would encourage this sort of thing by intentionally developing their land for that purpose.

The flip side of “digital developers” and planned AR gaming activities, however, is when people congregate on someone’s property for the same activities uninvited. Physically entering land that someone else has the right to possess is called trespass. Once a trespasser is on someone else’s land, they are liable for any damage resulting from their presence. Avoiding those circumstances is very likely one of the major reasons why Ingress and other AR experiences drive their users to publicly owned lands. Although the person trespassing would be the one most directly responsible for trespassing onto private property, it is not difficult to imagine circumstances in which an AR experience designer is held jointly liable for the trespass (and any resulting damage) because the AR experience led users to onto the private property.

Designers should also keep in mind how users are likely to access an intended destination, even if it is located in a public or otherwise permissible location. If the only, or the best, way to access the destination is by crossing private property, or if it’s reasonable to expect that more people will arrive than the destination can accommodate, then trespasses are bound to occur.

Trespasses can pose legal risks for land owners too, in narrow circumstances. For example, a landowner may be held liable when he knows people are trespassing on his property and that there are hidden dangers they might encounter, but does nothing about it. This may be a particular concern if, instead of chasing augment-using kids off his lawn, a property owner instead provides digital content from his own location. If the augmentation is inviting enough, yet masks hidden dangers or otherwise poses risks that minors may not recognize, then it could pose what’s called an “attractive nuisance.”

The prevailing view of this doctrine is set out in Section 339 of the Restatement (Second) of Torts. Under that standard, a possessor of land is liable for physical harm to trespassing children where the injury is caused by an artificial condition on the land if:

(a) The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass;

(b) The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children;

(c) The children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;

(d) The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved; and

(e) The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

To put this in context: I recently experienced “artificial conditions” that had “attractive nuisance” (figuratively) written all over them. Walking through a public garden area in a major American downtown, I saw steep cement walls with narrow steps just begging to be climbed. There were small, obligatory signs warning people not to do so, of course, but nothing that a minor would recognize. Likewise, the same park featured expansive retaining pools that certainly looked like swimming pools, although the water was little better than sewer runoff. Again, the tiny signs nearby did nothing to stop hordes of young people from wading right in.

How might this doctrine apply in an augmented world? That depends entirely on how its digital infrastructure develops. I raise the question, however, because it’s easy to picture circumstances in which large visualizations of digital signage, game elements, characters and other displays are made to appear over land that isn’t meant to be physically entered—the middle of a road or a construction site, for example—but that nevertheless pique the curiosity of children beyond the point of resistance. In those circumstances, land owners would be well-advised to take stock of potential dangers and use reasonable care in preventing injury.