Legally Speaking: Halloween May Be Over, But the Lawsuits Are Just Beginning

By John G. Browning | Nov 4, 2010

You can keep your ghosts, ghouls, vampires, and flesh-eating zombies. I know what's even scarier – lawyers.

Scottish poet Robert Burns knew it, too. In his 1790 narrative poem "Tam o'Shanter," Burns allows his readers to see, through Tam's eyes, the many horrors of the haunted Alloway Church – horrors that include "Three lawyers' tongues, turn'd inside out/Wi'lies seam'd like a beggar's clout."

Before the last piece of Halloween candy is eaten or the costumes put away, the lawsuits are already beginning.

Many of these lawsuits involve haunted houses. More than 300 amusement and theme parks offer some type of Halloween or haunted house event. Charity and civic groups also get into the spirit of things, putting on more than 1,000 haunted attractions nationwide.

There's even a trade association, the Haunted House Association, that estimates more than 2,000 haunted attractions crop up every year in the weeks leading up to Oct. 31.

And traditionally, visitors to such attractions don't have much of a basis for negligence lawsuits against the proprietors of these scary establishments, under the legal doctrine of assumption of the risk. But that doesn't stop people from trying.

In 2000, for example, Cleanthi Peters sued Universal Studios after visiting the park's Halloween Horror Nights haunted house. She claimed that she suffered "extreme fear, mental anguish, and emotional distress" because the haunted house was too frightening.

Hello – isn't that the point of a haunted house?

Last December, Jessica Launderville sued the operator of the Realm of Terror attraction in Round Lake Beach, Ill. She claimed that she got tangled in rubber mats and fell as she was being chased "by an employee with a chainsaw as a scare tactic."

Again, isn't that part of the whole haunted house experience?

Similarly, a woman in Missouri sued the owners of the Edge of Hell haunted house in Kansas City when she tripped, fell, and allegedly suffered a broken nose, fractured wrist, and dislocated elbow.

According to Rhonda Gomez's lawsuit, Full Moon Productions "failed to provide adequate lighting" and allowed "mechanical creatures to physically strike customers."

Wow. The haunted house was dark, and mechanical monsters would pop out on cue – color me surprised. It wouldn't be much of a haunted house if everything was well-lit, now would it?

In 1996, a Louisiana appellate court shared my skeptical view in a case where plaintiff Deborah Mays sued the Gretna Athletic Boosters, who had operated a haunted house at a local playground to raise money for athletic programs.

Mays claimed to have been injured after a haunted house employee jumped out, frightening her and causing her to run into a black visqueen-covered cinder block wall (Mays purportedly required two surgeries to her nose as a result).

The appellate court rejected May's contention that the haunted house was unreasonably dangerous.

The court said:

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.

Sometimes other elements of the spooky atmosphere lead to lawsuits. Vanessa Neal and her 15-year-old daughter Brittney Holmes are suing the operators of the St. Louis, Mo., haunted attraction The Darkness after the teenager allegedly suffered a severe asthma attack due to the haunted house's fog machine.

Holmes, who already suffered from asthma, visited The Darkness last Halloween and was fine during the tour itself. But, according to the lawsuit, she suffered an allergic reaction on the drive home, prompted by "the artificial smoke and fog they use."

Holmes' brain was deprived of oxygen for seven minutes, and she lapsed into a comatose state; her lawyer, Michael Stokes, estimates that the cost of her care has already exceeded $1 million.

But Larry Kirchner, owner of The Darkness, claims that his artificial fog – the same type used by Universal Studios and the San Diego Zoo – is "90 percent water and sugar" and couldn't have caused Holmes' reaction.

Moreover, Kirchner points out that his attraction features numerous warnings to people with respiratory problems, including a warning on its website, its tickets, a 10-foot by 10-foot sign on the outside of the haunted house itself, and on a sign near the ticket window.

Kirchner insists "There's nothing else I could have done to warn people with asthma."

Of course, not every lawsuit centers around the scary premises themselves.

Sometimes, it's the name itself that prompts lawsuits. Such is the case in a federal court in Maryland, where the Field of Screams attraction in Mountville, Penn., has sued the Olney, Md., Field of Screams over the trademark rights to using that name in connection with haunted venues.

The Pennsylvania attraction, which began in 1993, boasts around 70,000 visitors annually. Its lawyers claim consumers will confuse the Maryland upstart (begun in 2002) with the supposedly higher-quality Pennsylvania haunt.

Lawyers for the Maryland Field of Screams says the plaintiff has nothing to fear from it (it attracts 20,000-25,000 visitors each Halloween season). Among other reasons, the Maryland camp says confusion is unlikely given the two hour drive separating the two attractions.

In addition, they point to at least 25 other attractions nationally using the "Field of Screams" name and the fact that the catchphrase has been widely used, including in episodes of "The Simpsons" and "Married With Children." A judge has yet to rule on the dispute.

So the scariest part of Halloween has nothing to do with witches, ghosts, and things that go bump in the night. If you really want to frighten people and send chills down their spines, just call the lawyers.

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