Texas is just beginning to see the first signs of fall! I can tell because the temperature occasionally slips below 75 degrees and "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 may be the scariest one in a long time.
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"—the kind based 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 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 were filed against haunted houses in Louisiana for precisely the reasons suggested, and each case returned a ruling that the attractions were not responsible for the injuries sustained by their visitors. The reasoning 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. The outcomes of those cases set the precedent for future claims.
The key doctrine at work here is assumption of 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's pretty obvious that when you sign up to be scared, there's some 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 individuals. 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 a different case, a woman had her nose broken when another haunted house visitor was shoved into her. 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 at haunted houses may not get a lot of traction, the operators of the premises are also liable for damages from the physical premises themselves. Hastily-built outdoor facilities used for temporary haunted houses and parks can have plenty of 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, like exposed electrical cords, poorly-placed furniture or rugs, and props that extend into the walkway. Some haunted houses borrow a few tricks from carnival fun-houses too, 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 cuts, scrapes and bruises. Hey—it's hard 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. Cuts and scrapes could also mean bleeding, which adds hazards to both the bloody person and others. Blood adds another slip-and-fall hazard to the floor, and an open wound in an uncontrolled environment doesn't typically go well.
- Damaged or malfunctioning props. With so many scare-hungry people funneling through these haunted houses on a daily basis, animatronics and props can wear out and malfunction. Suddenly the machete-waving skeleton swings wide and whacks a paying customer on the head. A coffin, ordinarily bolted to the wall, works loose from its bracket and falls on someone. Floorboards break and someone's foot falls through, scraping or cutting their leg. Fog machines, while atmospheric, have been known to make too much carbon monoxide; in the tight confines of haunted houses, this can reach dangerous concentrations when the machines are run for hours at a time.
- Employee mistakes. It's one thing if an employee is just doing their job by scaring guest; as we mentioned, accidents 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 got handsy or too violent when some potential "victims" rounded a corner, that could be grounds for liability.
- Outdoor venues. More rural areas don't always have full-blown buildings devoted to scares, but instead use "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 kid to drive the tractor during a haunted hayride. That 13-year-old probably drives that tractor better than I would, but it's still a concern when a juvenile is at the wheel.
Trick or Treat, Just No Trauma.
I'm sure some folks think that I'm just some killjoy 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 where many folks don't. Contrary to what most people think, the law doesn't keep people from engaging in possibly-dangerous fun. It just requires the dangers to be appropriate to the activity.
In general I agree with rulings in the haunted house cases that I've come across. It'd be silly to punish the venues for doing exactly what people pay them to do. However, that doesn't excuse their operators from minimizing the hazards common to all premises. When one of those hurts someone, 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 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.