What Happens If I Get Hurt in the Metaverse

The use of virtual reality (VR) headsets is rising rapidly, and so are injuries that occur from using these devices. It shouldn't be a shock that physical injuries would increase because people cannot see the real world around them while wearing these headsets. Gameplay often requires users to make punching, stepping, and kicking movements to combat fictional opponents.

Interactive and immersive gameplay may be a great way to get in some exercise. Still, users are more prone to adverse effects if they aren't used to strenuous physical activity. A 31-year-old man from Germany broke his neck while playing a VR game that required "a combination of shoulder, arm, and head movements while wearing a VR headset." The question in this scenario is, should the game developer be responsible for creating a situation requiring an individual to make unnatural repetitive motions that could be dangerous to the consumer's well-being?

Another type of physical injury that is emerging even has a name. "Gorilla arm syndrome" has been identified as being caused when users hold their arms raised for long periods of time without taking a break, essentially like a gorilla would hold onto a branch.

Although VR headset manufacturers often include suggestions such as removing furniture and being mindful of pets and other people, if anyone has ever been involved in intense gameplay, virtual or not, it's easy to see how someone might lose track of their surroundings. Not having a sense of spatial limits is part of the immersive experience. While the user's mind doesn't realize boundaries, the physical body does.

Augmented reality (AR) is an enhanced version of the real world that's accomplished through digital visual elements, sound, and other sensory stimuli through technology like cell phones. One of the most popular games to emerge using this technology is Pokémon Go. It's a game about mapping the world and interacting with Pokémon characters by catching them and training them in real-life locations. The game requires the use of the user's cell phone camera and GPS.

The problem with this game is that people are getting hurt and hurting others while playing. A Purdue University paper found a disproportionate increase in traffic accidents near PokéStops (where gamers can collect virtual items that help them in the game.) The game is based on moving, so it may entice people to use the app while driving in their cars which can result in injuries and fatalities. Obviously, people shouldn't be driving while they're staring at their phones, but does the game developer have any accountability? In Britain, a man suffered horrible electrical burns after falling onto high voltage train tracks because he wasn't paying attention while playing the game. He had to undergo multiple surgeries and lost a leg because of the severity of his injuries.

The use of VR, AR, and trips to the ER are becoming more and more correlative. Emergency room doctors are seeing everything from contusions to broken bones. But are these injuries only the fault of the user? A man in Moscow stumbled over a glass table while wearing a VR headset crashing through the glass and mortally wounded himself on the shards. Could VR manufacturers and game developers do more to keep consumers safe? The answer could be product liability law.

Product liability law governs who is responsible for dangerous or defective products. It is sometimes easier for injured individuals to recover damages through product liability laws than ordinary injury laws. When a manufacturer or seller places a dangerous or defective product in the hands of a consumer, they can be held liable for injuries that result. Plainly put, product liability law requires that a product meet the typical expectations of a consumer.

There is no federal product liability law. Instead, each state has their own rules, and legal actions can be brought based on negligence, strict liability, or breach of warranty. Liability for a dangerous or defective product can be placed on any party in the distribution chain, such as:

• The manufacturer
• A manufacturer of parts
• The party that assembles or installs the product
• The wholesaler
• The retailer

To prove product liability, you must show that the product caused injury, was defective, and the defect made it unreasonably dangerous to use as intended. There are three types of defects that may be used to place liability on a defendant:

Design defects - The defect was present from the beginning before the product was manufactured. Somewhere in the design phase, the product was made defective.

Manufacturing defects - The defect occurred at some time during the construction of the product.

Marketing defects - The way the product was marketed was faulty, such as failure to warn of dangers, inadequate instructions for use, or improper labeling.

A claim for product liability requires that the following be met:

The product caused an injury or loss - Defective products can be dangerous, but without an actual injury or loss, you won't have a claim.

The product was defective - It must be proven that the product was defective through design, manufacturing, or marketing. It's required that manufacturers provide adequate warnings about the risk of injury and instructions for use.

The defect was the cause of your injury - There must be a link between the use of the product and your injury.

You were using the product as intended - It must be proven that you were using it as it was designed to be used. For example, if you put a glass bowl on top of a stove and used it to fry chicken, and the dish explodes and causes an eye injury, you wouldn't likely have a claim since a glass dish isn't designed to be used on a stovetop.

While it may take a while for the courts to catch up on this technology and how it differs from the real world, it doesn't necessarily mean that legal doctrine will change. Threatening to kill someone in the metaverse is just the same as threatening to kill someone verbally or sending it via text message. Many state and federal laws prohibit unlawful communications, such as threats and intimidation, and allow abusers to be sued in a civil action for the damages they cause. Here are some examples that may help when you ask, "What happens if I get hurt in the metaverse?"

Extortion - It's also unlawful to threaten with the intent of financial gain. This is known as extortion. The activities you pursue in the metaverse could leave you vulnerable, particularly if a person with bad intent hacks an external device. Hackers have been known to listen to users' activities without their consent or knowledge. Depending on your conversations and activities in the metaverse, a hacker could use your information to extort money from you. Of course, this is illegal, but in some states, you can sue the extorter for civil damages if you can prove their actions caused you harm or injury and you have proof of their threats or violence.    

Terrorizing - Nineteen states currently have laws against terrorizing. Additionally, stalking is a criminal activity when the actions of someone are meant to injure or instill fear. A woman who entered Meta's Horizon Venues experienced what she described as a "virtual gang rape" when other users began verbally and sexually harassing her. Another woman reported getting groped. But when is the person behind the avatar responsible for their illegal actions? If you've suffered psychological harm from another user's actions, Morgan and Morgan may be able to help win compensation for mental harm.

Slander and libel - Another cause for civil action in the metaverse is libel or slander. As we progress into these virtual and augmented realms, people have to be mindful that there are real-life people that can be harmed by actions. Wrongdoers can be held accountable through personal injury claims.

Data breaches - Finally, we're all likely aware of the intrusive collection of personal data that's prevalent today. The metaverse is substantially worse. Companies are collecting biometric data and all of your physical responses to better understand users' behavior. People have experienced many negative consequences because of data breaches that have been far-reaching. Furthermore, there's genuine concern about foreign governments gaining access to your data. At Morgan and Morgan, we've dealt with many claims of data breaches and have been able to recover damages for our clients. Data collectors have a duty to protect their user's information and inform them when a data breach occurs. 

Metaverse injuries are real, and lawmakers need to be proactive in addressing them. We've all seen the harm that came from the rise of social media, like cyberbullying. It's incumbent upon them to realize the same injuries and harm that happen in the real world will be reflected in the metaverse. Companies and platforms that are creating this new world need to be accountable when their actions or inactions cause harm to their consumers. If you're wondering what happens if you get hurt in the metaverse, we may be able to provide legal counsel. Existing laws may enable you to win compensation for your injuries or mental suffering. Contact us today for a free case evaluation.