Legally Speaking: It's My Party, and I'll Sue If I Want To

John G. Browning Aug. 5, 2008, 8:54am

It's your child's birthday party, and after all that preparation and planning, you're all set.

Birthday cake? Check. Decorations? Check. Goodie bags for all your little guests? Ready and waiting. Clown (or magician, or other entertainment of your choosing)? All set, with balloon animals at the ready. Liability waiver forms for everybody to sign?

What? You mean you forgot the liability waiver forms? You'd better have a good lawyer handy, then, because birthday parties are spawning some surprising litigation nowadays.

Take, for example, the controversy over an 8 year old's birthday party in Lund, Sweden. The boy in question handed out invitations to his birthday party at school. When a teacher spotted that two children hadn't received invitations, she confiscated all the invitations, maintaining that the school has a duty to ensure that there's no discrimination. The school has even reported the "rights violation" to the Swedish Parliament.

In response, the boy's father has filed his own claim, noting that the two children were left out because one hadn't invited his son to his own party, and because the other had had a falling out with his son. A verdict on this birthday battle is expected in September – just in time for another school year.

Sometimes, lawsuits are the result when birthday parties involve a little more danger than expected. Surely, Brian Andretti of Cleveland, Ohio, didn't count on the surprise he received at his 10-year-old son Mike's birthday party earlier this year.

When Mike cut the cake (purchased from Dave's, a supermarket chain in Cleveland), he and his guests found a kitchen knife inside! No one was hurt, and Dave's owner/operator Dan Saltzman has not only given the Andrettis a refund but also a gift certificate.

Despite this, Brian Andretti is still making litigious noises.

"It almost spoiled a birthday party and caused an accident," he says. "Someone needs to correct it." Andretti wants to find out "who's going to take care of the situation."

At a December 2006 birthday party for a 7 year old in Coral Gables, Fla., a 4 year old girl was mauled by a cougar that was part of the entertainment. And a 2003 birthday party in Kansas City was all fun and games for the 10 and 11 year olds in attendance – up until the monkeys acted up.

In what must have seemed like a good idea at the time, Susan Vanlandingham rented a couple of monkeys for her son Ben's birthday party. One of the frisky little primates, a 4-year-old Capuchin monkey named Wyatt, jumped on a child; depending on who you believe, Wyatt either bit the child, or merely scratched him. The incident led Ron Aryel, the county public health officer, to order that Wyatt be euthanized to be tested for rabies.

Wyatt's owner, Debbie Barnett, is a veterinary tech; she and her husband, a veterinarian, had Wyatt since he was a day old and insisted that Wyatt and all their other monkeys had been vaccinated against rabies. Despite this, Aryel insisted on putting the monkey down, even sending sheriff's deputies to Barnett's home.

Barnett sued Aryel and other health officials in 2005 for putting Wyatt down needlessly. In her lawsuit, she claimed that the stress of the birthday party incident caused her marriage to fall apart, and resulted in her business shutting down.

"I lost my marriage, I lost my profession…[b]ut the worst thing was we killed a nonhuman primate who was in the middle of this whole thing for nothing," Barnett says.

After her lawsuit was dismissed, Aryel filed a federal court lawsuit against Barnett, claiming malicious prosecution and alleging that he suffered emotional distress and damage to his reputation. That lawsuit is still pending; Barnett says the former health officer can "sue away," because she has nothing.

It was more monkey business of another kind, when a mother in Nottingham, England, arranged for a "birthday surprise" to greet her 16 year old son during one of his classes at Arnold High School. Unfortunately, instead of the "gorillagram" she ordered from the service, in walked a stripper.

The adult entertainer stripped down to her underwear while dancing to a Britney Spears song, and spanked the birthday boy 16 times. When the stripper pulled whipped cream out for the boy to apply to her body, the stunned teacher finally called a halt to the proceedings and ushered the dancer out before reporting the incident.

To date, there's been no word on whether the service responsible for the mix-up is going to be sued, but that young lad's classmates have already decided on the next nominee for "Mother of the Year."

But all of this is nothing compared to the legal hot water you'll find yourself in if you hire certain costumed characters to come to your kid's birthday party.

Companies that for years have provided characters from beloved TV shows and movies are increasingly finding themselves in the crosshairs of entertainment industry lawyers making claims of trademark infringement.

HIT Entertainment, whose portfolio of characters includes Barney, Thomas the Tank Engine and Bob the Builder, regularly monitors birthday-party planning Web sites and parenting blogs. Marvel Entertainment, Inc., which owns the rights to Spiderman, Iron Man, the Hulk and other comic book characters, is similarly vigilant.

"We don't want to interfere with or ruin the fun of birthday parties," say Marvel general counsel John Turitzin. "But we do search the Internet all the time for commercial use of our characters."

Party service providers like Kim Kalin of Atlanta's Copy Cats for Kids are feeling the squeeze. Kalin has received at least nine cease-and-desist letters from lawyers in the past few years, and recently spent $30,000 in settling a lawsuit with attorneys representing the owners of the Barney the purple dinosaur franchise.

After Marvel lawyers sent her a letter claiming to have knowledge of "unauthorized costumed Spiderman, Hulk and Wolverine appearance services," she now turns away customers insisting on such Marvel characters.

For many party service companies, the solution is to avoid trademark infringement lawsuits by providing costumed characters that merely resemble popular characters; instead of Elmo or Dora the Explorer showing up at your child's party, for example, you might see "Big Red Tickle Monster" or "Explorer Girl with Backpack."

There you have it. As if lawyers haven't done a thorough enough job in sucking the fun out of society, they've now tackled the final frontier: kiddie parties.

John Browning is a partner in the Dallas office of Gordon & Rees, LLP. He may be contacted at:

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