It is the oldest admonishment in the book from parent to child – don’t talk to strangers. But one day a year we make an exception. And more than just letting our kids talk to strangers, we even let them accept food from them. Of course parents change the rules on Halloween. But while parents can be flexible on Halloween, can the legal system? A hallmark of the legal system is its predictability. Is it less predictable when Halloween is concerned?
One Louisiana appeals court said yes: “On any other evening, presenting a frightening or threatening visage might be a violation of a general duty not to scare others. But on Halloween at trick-or-treat time, that duty is modified. Our society encourages children to transform themselves into witches, demons, and ghosts, and play a game of threatening neighbors into giving them candy.” Bouton v. Allstate Ins. Co., 491 So. 2d 56 (La. Ct. App. 1986) [enhanced version available to lexis.com subscribers], (also noting that the Louisiana legislature has recognized Halloween as a special occasion by exempting it from the statute which prohibits the wearing of masks in public places).
But does this “Halloween rule” apply to haunted houses? All sorts of duties are imposed on property owners to maintain a safe premises. Do these same rules apply when the premises are advertised as having, as their only purpose, to scare visitors? Indeed, many visitors will leave a haunted house disappointed if they were not frightened while there. That being the case, can the visitor of a haunted house now turn around and sue for injuries sustained in the process of getting what he asked (and paid) for?
Just as with the trick-or-treaters in Bouton, haunted houses seem to universally get special treatment at the court house. Based on my research, there have been five reported judicial decisions nationally in which a visitor of a haunted house sought recovery for an injury sustained on account of being scared (a few other cases involve haunted house injuries but not on account of the fright factor). In all five cases the injured patron was not able to recover because of the unique nature of a haunted house. [Here’s the eeriest factor -- all five cases are from the Court of Appeal of Louisiana. What is up with that?] Take a look at the following:
In Mays v. Gretna Athletic Boosters, 668 So. 2d 1207 (La. Ct. App. 1996) [enhanced version available to lexis.com subscribers], the plaintiff, a 10 year old girl, was frightened when a character at a haunted house jumped out at her. She ran – running directly into a visqueen-covered cinder block wall. The court rejected her argument that covering a brick wall with black visqueen in a dark haunted house is an unreasonably dangerous condition which defendant had a duty to prevent plaintiff from running into. “The very nature of a Halloween haunted house is to frighten its patrons. In order to get the proper effect, haunted houses are dark and contain scary and/or shocking exhibits. Patrons in a Halloween haunted house are expected to be surprised, startled and scared by the exhibits but the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways. Operators are duty bound to protect patrons only from unreasonably dangerous conditions, not from every conceivable danger.”
In Bonanno v. Continental Casualty Co., 285 So. 2d 591 (La. Ct. App. 1973) [enhanced version available to lexis.com subscribers], the plaintiff, an 84 year old woman, fell while in the “devil’s den” of a haunted house. A person disguised as the devil was mechanically projected into the room on an overhead track. The court held that the plaintiff obviously assumed the risk of being frightened, jostled and pushed about when she entered the attraction. “Whether Mrs. Bonanno fell as a result of being jostled by the crowd [her version] or in a frightened attempt to get away from the ‘devil’ [defendant’s version] is unimportant. She obviously had knowledge that she could anticipate being confronted by exhibits designed to startle and instill fear. She had to realize that the very nature of the attraction was to cause patrons to react in bizarre, frightened and unpredictable ways. It would be inconsistent in this case for this court to allow plaintiff to recover for damages which resulted from her being frightened, precisely the effect that the ‘Haunted House’ was calculated to produce.”
In Reech v. Optimist Club of Downtown Baton Rouge, 408 So. 2d 399 (La. Ct. App. 1982) [enhanced version available to lexis.com subscribers], the plaintiff was injured when bumped in a chain reaction of bumping started by someone that was frightened in a “scare station” of a haunted house. An actor, in a dark area, was wearing an ‘alien’ mask and had control of a strobe light that he would turn on at various intervals for the purpose of startling individuals when they came into the room. The court, reaching the same assumption of the risk conclusion as in Bonanno, held that the plaintiff could not recover. The court observed that the purpose of a haunted house is to affect people, there were no defects in the flooring and the effect of the scare station would be lost with bright lights.
In Galan v. Covenant House New Orleans, 695 So. 2d 1007 (La. Ct. App. 1997) [enhanced version available to lexis.com subscribers], the plaintiff, after exiting a haunted house and being thanked for coming, was injured when “Jason” (Friday the 13th), hiding behind a visqueen covered fence, started up a chainsaw for purposes of frightening the visitors one last time. The court held that, despite the timing of this fright, the plaintiff could not recover. “It appears to be plaintiff’s contention that this last exhibit, because it was unexpected, created an unreasonable risk of harm. However, the very purpose of a haunted house is to frighten its patrons. … [T]he fact that the plaintiff did not expect this last exhibit does not mandate that the exhibit is unreasonable. Accordingly, we find no breach of duty on the part of defendant by its actions in placing the last exhibit in the visqueen walled alleyway exiting the haunted house because defendant owed no duty to plaintiff to guard against her reactions at any point while in the attraction.” (emphasis in original).
In Durmond v. Billings, 873 So. 2d 872 (La. Ct. App. 2004) [enhanced version available to lexis.com subscribers], the court followed Galan to deny recovery to a plaintiff also injured in a “Jason” chainsaw incident. Plaintiff fell and broke her leg when approached by Jason, holding a chainsaw, in a haunted cornfield maze. “[W]e find that no duty was owed by the Billingses to Mrs. Durmon in this case to warn or protect her from her reaction to being frightened by ‘Jason,’ an experience she expected to have and for which she paid an additional admission fee.” (emphasis in original).
So the moral of this tale is clear. You go to a haunted house expecting to (and paying to) be surprised, startled and scared by the exhibits. You have the right to complain when the experience is not scary. But there is no complaining when you get what you asked for.
I am of course curious why the only judicial decisions to have ever addressed whether a visitor of a haunted house can recover for an injury sustained on account of being scared are from Louisiana. Even if I missed one or two (and I don’t think I have), Louisiana would still have many many multiples of the 2% of such cases that it would across all states evenly. If anyone has any ideas about this – serious or jokey – I’d love to hear them.
Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.
The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.
Randy J. Maniloff is an attorney in the Philadelphia office of White and Williams, LLP. He concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.
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