Kathryn a. Ritcheske 2014-09-29 06:01:36
Delight in fright at your own risk? Haunted houses are big business. There are approximately 3,500 haunted attractions in the United States, and the industry brings in $6.5 billion annually.1 With low lighting and scares aplenty, it is no surprise that patrons of haunted houses are occasionally injured. When that happens, who is liable? HAUNTED HOUSE PATRONS AS BUSINESS INVITEES Amusement park guests, including those visiting haunted attractions, are considered business invitees.2 In Texas, an invitee is a person who enters the possessor’s premises in response to the possessor’s express or implied invitation and for the benefit of both parties.3 The owner/operator of the attraction is not an insurer of patrons’ safety,4 and thus is not required to eliminate every possible danger. But it does have a duty of ordinary care to keep the premises reasonably safe.5 Many cases involving haunted attractions have been decided by Louisiana courts. Louisiana also holds owners of haunted attractions to a duty of ordinary care. Assumption of the risk is no longer a valid defense in negligence actions in either Louisiana or Texas.6 The plaintiff’s knowledge and conduct are considered only to determine comparative negligence.7 The question, then, is whether the defendant met its duty of ordinary care to its patrons and did not create or fail to warn about unreasonably dangerous conditions.8 In turn, most of the plaintiffs who have tried to recover for injuries suffered at the attractions have been unsuccessful. DUTY OF ORDINARY CARE: WHEN IS IT BREACHED? Darkness at a haunted house? Not an unreasonably dangerous condition. In Mays v. Gretna Athletic Boosters, a patron of a haunted house was injured when she ran into a cinder block wall covered in black plastic after being frightened by a member of the haunted house’s personnel.9 She argued that covering the wall in black Visqueen created an unreasonably dangerous condition.10 The court of appeals disagreed, reasoning that darkness is an expected condition in haunted houses.11 The defendant met its duty of care by building rooms of adequate size and by stationing personnel throughout the haunted house to assist visitors.12 Being startled? Not unexpected at a haunted house, even after exiting the house itself. In Galan v. Covenant House, the plaintiff fell and was injured after being frightened by a haunted house employee dressed as Jason from the Friday the 13th movies.13 The plaintiff contended that the Jason exhibit presented an unreasonable risk of harm because it was located outside the exit door of the haunted house and she did not expect it to be there.14 The court disagreed, holding that the defendant’s duty of care applies to all patrons and does not turn on any individual’s state of mind.15 Because the purpose of a haunted house is to frighten its guests, the defendants did not have a duty to guard against the plaintiff’s reactions at any point during her time at the haunted house.16 The court of appeals affirmed the grant of summary judgment for the defendant.17 Slipping in the mud? Not the owner’s fault. In Durmon v. Billings, the plaintiff fell and broke her ankle while running through a spooky cornfield maze.18 She sued the owners of the haunted attraction for damages, alleging that they were negligent and that the cornfield presented an unreasonable risk of injury because the maze paths were muddy.19 The trial court granted summary judgment for the defendants, finding that none of the haunted attraction’s employees were negligent and that the muddy conditions were equally apparent to the plaintiff as they were to the defendants.20 In fact, the plaintiff had already gone through part of the maze before entering the haunted portion, so she knew the paths were muddy and chose to continue.21 The plaintiff testified that there were employees throughout the maze and that these “corn cops” had flashlights to assist patrons.22 She did not complain about the muddy paths or report the condition to anyone, and she admitted that there was “probably not” any difference between the paths in the first and second phases of the maze.23 Given this testimony, the court of appeals affirmed the grant of summary judgment for the defendants, holding that the condition was obvious to the plaintiff and therefore not unreasonably dangerous.24 As to negligence, the court held that the defendant did not breach its duty of reasonable care.25 The plaintiff admitted that the purpose of the haunted phase of the corn maze “was to scare, surprise, and startle the patrons and that she expected to be frightened.”26 Thus, the trial court granted summary judgment for the defendants on negligence grounds.27 But plaintiffs don’t always lose these cases. In Downs v. E.O.M. Entertainment, Inc., a haunted house visitor was injured on a “coffin chute slide” when the trapdoor malfunctioned and closed on his legs.28 He sued the haunted house for negligence, alleging a failure to properly maintain the facility or train its employees.29 The supervisor of that part of the park was notified of the injury but did not call security or the on-site physician and did not make a written report of the incident.30 Further, the employees of the haunted attraction offered contradictory testimony about the company’s procedures in the event of an accident.31 The court of appeals (the same court that decided Durmon) held that the trial court did not err in finding the defendants liable for the plaintiff’s injuries.32 HAUNTED HOUSES AND GOVERNMENTAL IMMUNITY If a plaintiff is injured at a haunted attraction owned or operated by a governmental entity, recovery will depend on whether the haunted house falls within an exception to sovereign or governmental immunity. In Drake v. Mitchell Community Schools, a vacant grain elevator had been donated to the local Kiwanis chapter for use during a haunted house fundraiser. Members of the high school student council had volunteered to help with the event, and one of the students ended up contracting histoplasmosis, an infectious disease caused by inhaling certain fungal spores.33 The girl and her parents sued Kiwanis, the school trustees, and the owners of the grain elevator for negligence.34 The trial court granted summary judgment in favor of the school based on governmental immunity under the Indiana Tort Claims Act.35 The appeals court, however, reversed the decision,36 holding that school personnel, while not strictly liable for students’ injuries, have a duty of ordinary and reasonable care to protect the safety of students under their authority.37 In this case, the faculty adviser was aware of the danger of infection because of the grain elevator’s condition, had the time and opportunity to warn the students, and did not do so. Depending on the wording of a state’s sovereignimmunity statute, the operation of a haunted attraction may qualify as a governmental act. In those cases, the plaintiff will not be able to recover for injuries. When the Mississippi Department of Mental Health held a Halloween haunted house fundraiser, a patron fell down a set of stairs in a darkened area39 and sued MDMH for negligence. MDMH asserted sovereign immunity under the Mississippi Tort Claims Act,40 but the trial court denied MDMH’s motion for summary judgment. The Mississippi Supreme Court reversed, holding that the fundraiser was a discretionary act by MDMH and was thus protected by sovereign immunity.41 Although the different states’ statutes vary in wording, governmental immunity does not preclude liability for dangerous and defective conditions. In Burton v. Carroll County, a Tennessee case, the plaintiff injured her leg while going down a slide at a haunted house operated by a volunteer fire department as part of a fundraising event.42 The suit, brought under the Tennessee Governmental Tort Liability Act,43 alleged that the slide “was a dangerous and defective condition” and that the defendants failed to properly warn the public of its dangers.44 The act has a provision removing governmental immunity in cases involving dangerous conditions, but actual or constructive notice is required to impose liability.45 The defendants challenged the trial court’s finding of notice, and the court of appeals affirmed. The defendants were aware of the defect when the plaintiff was injured, the slide was steep, there was poor lighting, and the defendants had no employees stationed by the slide to help patrons.46 TBJ NOTES 1. Press Release, Haunted Attraction Association, America’s Haunted Attractions Prepare Year-Round to Wow Guests this Halloween (June 21, 2014) (on file with author). 2. See Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 454 (Tex. 1972) (“Persons who have been treated as invitees include patrons of restaurants, banks, theatres, and places of amusement.”). 3. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975). 4. Wal-Mart Stores v. Reece, 81 S.W.3d 812, 814 (Tex. 2002). 5. Carlisle v. J. Weingarten, Inc., 152 S.W.2d 1073, 1074 (Tex. 1941). 6. See Murray v. Ramada Inns, Inc., 521 So. 2d 1123, 1125 (La. 1988); Farley v. M M Cattle Co., 529 S.W.2d 751, 758 (Tex. 1975). Under the old assumption-of-therisk defense in Louisiana, a patron of a haunted house was denied recovery for injuries that occurred when she was frightened and fell. The court held that “[i]t would be inconsistent … to allow plaintiff to recover for damages which resulted from her being frightened, precisely the effect that the ‘Haunted House’ was calculated to produce.” Bonanno v. Cont’l Cas. Co., 285 So. 2d 591, 592 (La. Ct. App. 1973). 7. Mays v. Gretna Athletic Boosters, Inc., 668 So. 2d 1207, 1208 (La. Ct. App. 1996). 8. Galan v. Covenant House, 695 So. 2d 1007, 1008 (La. Ct. App. 1997); Mays, 668 So. 2d at 1209. 9. Mays, 668 So. 2d at 1208. 10. Id. 11. Id. 12. Id. 13. Galan, 695 So. 2d at 1008. 14. Id. at 1008-09. 15. Id. at 1009. 16. Id. 17. Id. 18. Durmon v. Billings, 873 So. 2d 872, 875 (La. Ct. App. 2004). 19. Id. 20. Id. at 875. 21. Id. at 877. 22. Id. 23. Id. at 877-78. 24. Id. at 878. 25. Id. at 879. 26. Id. 27. Id. 28. Downs v. E.O.M. Entm’t, 997 So. 2d 125, 127 (La. Ct. App. 2008). 29. Id. at 127-28. 30. Id. at 130. 31. Id. at 130-31. 32. Id. at 131. 33. Drake v. Mitchell Cmty. Schs., 649 N.E.2d 1027, 1028 & n.1 (Ind. 1995). 34. Id. at 1028. 35. Ind. Code ¤ 34-13-3-3(12) (“A governmental entity or an employee acting within the scope of the employee’s employment is not liable if a loss results from … failure to make an inspection, or making an inadequate or negligent inspection, of any property, other than the property of a governmental entity, to determine whether the property complied with or violates any law or contains a hazard to health or safety.”). 36. Drake v. Mitchell Cmty. Schs., 628 N.E.2d 1231, 1234-35 (Ind. Ct. App. 1994), aff’d, 649 N.E.2d 1027 (Ind. 1995). 37. Id. 38. Id. at 1234. 39. Miss. Dep’t of Mental Health v. Shaw, 45 So. 3d 656, 657 (Miss. 2010). 40. Miss. Code Ann. ¤ 11-46-9(1)(d) (“A governmental entity and its employees acting within the course and scope of their employment or duties shall not be liable for any claim … based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee thereof, whether or not the discretion be abused … ”). 41. Shaw, 45 So. 3d at 660. 42. Burton v. Carroll Cnty., 60 S.W.3d 829, 830-31 (Tenn. Ct. App. 2001). 43. Tenn. Code Ann. ¤ 29-20-101 et seq. 44. Burton, 60 S.W.3d at 830-31. 45. Tenn. Code Ann. ¤ 29-20-204(b). 46. Burton, 60 S.W.3d at 833. KATHRYN A. RITCHESKE is a graduate of Dartmouth College and the University of Texas School of Law. She lives in Houston, where she works as a managing editor for Jones McClure Publishing on titles covering Texas appellate procedure and the Texas Rules of Evidence
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