October 17, 2018
Halloween is the one time of year where exceptions are made to allow for what society would otherwise consider to be unacceptable behavior. And while it may come as no surprise that parents, guardians and teachers allow children to behave differently during this holiday, many states have surprisingly extended this difference in societal expectations to apply to the laws and the standards that govern legal actions for injuries that occur during this time of year.
One major difference highlighted by court opinions throughout the country pertains to the duty of care owed to a Plaintiff in a personal injury lawsuit with regard to defects and/or dangerous conditions on a property. With slip and falls being a major concern for property and business owners, it’s helpful to know where courts stand on the issue of the differing standard(s) of care. Generally, a property owner owes a visitor a duty of care that differs based upon their status as a trespasser, licensee, or invitee and based upon the state in which the property/attraction is located.
Over the years, many courts have recognized that this duty may be different in certain scenarios, specifically with regard to haunted attractions, as there are inherent risks involved that otherwise don’t normally exist in the real world. As such, many courts have taken the position that a lower standard of care applies when a Plaintiff seeks to recover for injuries sustained at a facility, attraction or exhibit as a result of the Plaintiff’s reaction to being surprised, startled, or scared when the facility, attraction, or exhibit was intended or expected to surprise, startle, or scare attendees. This lower standard of care has been categorized as an assumption of risk, which in essence means that there is no duty to protect a Plaintiff against risks that are inherent in the nature of the activity.
For example, in California, the court in Griffin v. The Haunted Hotel, Inc.(2015 Cal. App. Unpub. LEXIS 7591), was faced with the issue of whether to impose liability on a Defendant when a Plaintiff fell and broke his wrist while running away from a stranger with a chainsaw at the Defendant’s haunted trail ride. The court explained that while “[p]rimary assumption of risk does not provide absolute immunity” to Defendants in these types of cases, patrons and visitors of haunted attractions don’t want to go to a haunted attraction that isn’t scary. Because it would be impossible to have a haunted facility without the inherent risk that a patron may become scared and run and fall, the court ultimately declined to impose liability where the Defendant was not acting intentionally or recklessly in causing the injury.
Similarly, in Durmond v. Billings (873 So. 2d 872), a Plaintiff fell and broke her leg while running from “Jason” from “Friday the 13th” while attending Defendant’s haunted corn maze. Ultimately, the court held that the Plaintiff paid to be frightened and thus could not recover for injuries sustained as a result of her reaction to being frightened. In Mays v. Gretna Athletic Boosters, Inc. (668 So.2d 1207), the court declined to hold Defendant liable for injuries sustained by a ten-year-old Plaintiff when she ran into a brick wall covered with black material after being frightened during the Defendant’s haunted house attraction.
Although many courts have taken the position that an injured Plaintiff cannot recover for injuries sustained at haunted attractions, not all states have adopted this lower standard of care and many have not addressed the issue. If you or someone you know has questions concerning insurance coverage or litigation pertaining to haunted attractions, please do not hesitate to contact our office.