The House on Liability Hill: Haunted Houses and Premises Liability

Michael GrossmanOctober 14, 2016 6 minutes

Texas is just beginning to see the first signs of fall! I can tell because the temperature occasionally slips below 75 degrees and the ubiquitous "pumpkin spice," at this point a self-referential pop culture trope, has once again appeared in every conceivable form. And of course, Halloween approaches! Given how close October 31 is to November 8, this year's bound to be the scariest one in a long time.

Hillary and Trump rubber masks
Hello, nightmare fuel!

Speaking of Halloween, one of my employees was recently invited to SCREAMS Haunted House, which offers visitors the opportunity to have the bejeezus scared out of them by underpaid, bored seasonal employees in zombie makeup. He told me that he politely declined the invitation, because he was too tightly-wound to particularly enjoy "jump scares"--those predicated on turning blind corners in dim light, only to have some goon in a hockey mask leap out at you.

His story got me thinking, though: Halloween is the one time of year where no one questions a stranger's right to terrify, to alarm, and to get uncomfortably close to us with what we all fervently hope is a fake meat cleaver. What if the fear inspired in a haunted house gets someone hurt? Let's say they try to flee when they hear a chainsaw roar, and in their panic they slam into a wall. What then? What if an especially-tense thrill-seeker has an anxiety attack, or even worse, a heart attack?

Who is responsible for injuries sustained on the premises of haunted houses?

For Scare-Related Injuries, Precedent Is Not on the Plaintiffs' Side.

A handful of claims have previously been filed--all of them in Louisiana, coincidentally--against haunted houses for precisely the reasons suggested, and each has returned a ruling that the attractions are not responsible for the injuries sustained by their visitors. The outcomes of these cases set the precedent with which further claims would likely be evaluated. In all five cases, the court ruled that the owners and operators of the attractions couldn't be held liable for injuries on their premises. The pivotal idea behind these decisions is that plaintiffs paid for the opportunity to be scared and startled, and the haunted house operators couldn't have known how violently they would react to that.

In legal circles, the key doctrine is assumption of the risk. This means that by engaging in some activities, those who choose to do so accept the consequences for their actions. While this defense is typically abused by defendants and argued in numerous situations that it doesn't apply, it is pretty obvious that when you sign up to be scared, there's a remote likelihood of a medical emergency. We all sign up for this risk when we let someone jump out of hidden nooks and crannies in grotesque costumes.

In one such instance, a woman was frightened to the point of falling down by a rampaging Jason Voorhees (of Friday the 13th infamy) who popped out from behind some plastic sheeting. On falling, the woman hit her head and required a trip to the emergency room, possibly concussed. An appellate court in Louisiana upheld a lower court's decision that the attraction owners were not liable:

"[Haunted house attendees] are expected to be surprised, startled and scared by the exhibits, and the operator does not have a duty to guard against patrons reacting in bizarre, extreme and unpredictable ways."

The court suggested that the operator's standard of care only needed to be exercised with the general welfare of all patrons in mind, not the unforeseeable effects on individual patrons. The house could reasonably expect surprise, but didn't have to take safety precautions against extreme, harmful exhibitions of it. Admittedly, it would be far less scary if Jason had politely announced his impending arrival before slowly emerging from behind the curtain.

In another case, a woman had her nose broken when another haunted house visitor was shoved into her while navigating the haunted house in a crowd. She alleged the attraction operator should have exercised better containment and control of the crowd. The court found she had assumed the risk of being "jostled and pushed about" when she entered the attraction. This ruling assigned the onus of individual safety to the haunted house visitor, suggesting she knew when she bought her ticket that there would an element of physicality.

A third incident in a corn maze involved a visitor trying to run from another masked Jason (fans of the series will know how that guy gets around) who appeared from between the rows in a corn maze. In her attempt to flee, she slipped in mud and broke her leg. When she attempted to sue the owners of the corn maze, the court found that she should have had a reasonable expectation that the ground was muddy by the time she got to the area of the maze where she slipped. As for Jason's chainsaw-wielding arrival, the court also found that the visitor had paid an additional fee to go through the "scarier" half of the maze, suggesting implicit consent for more frightening incidents. The burden of heightened awareness and caution fell to the attendee.

Oddly, Chainsaw-Swinging Maniacs Aren't the Only Danger at a Haunted House.

While scare-related injuries sustained at haunted houses may not receive a lot of traction, the operators of the premises are also liable for damages from the physical premises themselves. Hastily-constructed outdoor facilities used for temporary haunted houses and parks can be fraught with issues. In other cases, companies buy old properties for their run-down look, rightly thinking that the condemned appearance of the buildings increased their perceived "spookiness." Neither setup lends itself well to meticulous preparation, especially for ventures that are by their nature usually seasonal and dismantled or packed up within a month or two. Here's a few of the more-common injuries around such premises:

  • Slips and falls. Haunted houses are often laid out in ways that seem to invite trips, slips, falls, spills, and other losses of balance. Where to begin? The layout is at least partially designed to disorient visitors. Lighting is dim in some areas and strobing in others. Fog from concealed machines conceals any uneven or slippery patches on the ground. Paths through the venue are often uneven and have narrow stairways. If something jumps out in an area where vision is obscured, it could cause a recoiling visitor to lose his or her footing. There's no shortage of tripping hazards to ensnare feet in such places, too--exposed electrical cords, poorly-placed furniture or floor coverings, or props that extend into the walkway. Some haunted houses borrow a few tricks from carnival fun-houses as well, including mechanically-operated floors that shake or shift under a customer's feet.
  • Exposed construction materials. Screws, nails, unfinished edges, and splinters from plywood boards can cause lacerations, scrapes and bruises. It is difficult for a person to keep a watchful eye out for environmental hazards when trying to dodge zombies and serial killers in a strobe-lit room with a shaking floor. Logically extending from cuts and scrapes comes the possibility of bleeding, which adds additional hazards to both the bloody person and other patrons of the facility. Blood adds a new slip-and-fall hazard to the floor, and an open wound in an uncontrolled environment doesn't typically go well.

  • Damaged or malfunctioning props. The sheer volume of scare-hungry patrons funneling through these haunted houses on a daily basis suggests that their animatronics and props could wear out and malfunction. Suddenly the machete-waving skeleton accidentally swings wide and whacks a paying customer on the head. A coffin, ordinarily bolted to the wall, has worked loose from its bracket and falls on someone. Floorboards break and someone's foot falls through, scraping or cutting his leg. Fog machines, while atmospheric, have been known to create excess quantities of carbon monoxide; in the tight confines of haunted houses, this can reach dangerous concentrations when the machines are run for many hours at a time.
  • Employee mistakes. It's one thing if an employee is performing his or her job within the expected standards--surprising and titillating guests by frightening them. As we discussed, accidents that befall patrons during this normal exchange normally are decided in favor of the defendants. However, seasonal employees are notorious for not taking their temporary jobs very seriously. If one of these non-model employees were inebriated or distracted when some potential "victims" rounded a corner and overzealously grabbed/struck one, there could certainly be grounds for liability. Employee are representatives of the company, and their actions are factored into the proprietors' liability.
  • Outdoor venues. More rural areas don't always have full-blown buildings devoted to scares, but instead erect "haunted" cornfield mazes or hayrides. Like we saw above, these can have their share of hazards as well, including terrain or weather-related concerns, as well as staffing problems, since employee options can be limited in smaller towns. On farms out to make a few bucks during the season, it's not uncommon for the farmer's adolescent child to drive the tractor during a haunted hayride. While it's a little odd to think that said 13-year-old stands a better chance of properly driving that tractor than I do at 32, it constitutes a concern.
  • Trick or Treat, Just No Trauma.

    I'm sure some folks are probably thinking that I'm just some attorney who is trying to mess with one of their favorite holidays. I don't want to spoil the fun, it's just that practicing personal injury law means applying a critical eye to things. Contrary to what most people think, the law doesn't prohibit people from engaging in dangerous, but fun activities. Instead it merely requires that the dangers be appropriate to the activity.

    In general I agree with rulings in the haunted house cases that I've come across. It would be silly to hold haunted houses accountable for doing what people pay them to do. However, that doesn't excuse the operators of these attractions of ensuring that hazards common to all premises are addressed. When one of these injures a patron, that's a different matter. In short, the law only expects haunted house owners to play by the same rules that the rest of us have to abide by. If that weren't the case, then we'd have a haunted house loophole in our justice system, which quite naturally, we don't.