Law: Spooky Torts - The 2022 List Of Litigation Horrors

[grarpamp]

Cyber Law not as fun...

https://jonathanturley.org/2022/10/30/spooky-torts-the-2022-list-of-litigation-horrors/

https://www.statista.com/chart/28571/trick-or-treat-around-the-world/
https://historycollection.com/10-christian-holidays-beliefs-steeped-pagan-traditions/8/
https://eu.cincinnati.com/story/news/2019/10/30/mexico-day-dead-mixes-with-halloween/2484235001/
https://www.thedailymeal.com/travel/how-kids-trick-or-treat-around-world-slideshow
https://www.statista.com/topics/4926/halloween-spending-in-the-united-kingdom-uk/

Here is my annual list of Halloween torts and crimes. Halloween of
course remains a holiday seemingly designed for personal injury
lawyers around the world and this year’s additions show why. Halloween
has everything for a torts-filled holiday: battery, trespass,
defamation, nuisance, product liability and more. Particularly with
the recent tragedy in South Korea, our annual listing is not intended
to belittle the serious losses that can occur on this and other
holidays. However, my students and I often discuss the remarkably wide
range of torts that comes with All Hallow’s Eve.

So, with no further ado, here is this year’s updated list of actual
cases related to Halloween.

In October 2021, Danielle Thomas, former exotic dancer known as “Pole
Assassin” (and the girlfriend of Texas special teams coach Jeff
Banks), found herself embroiled in a Halloween tort after the monkey
previously used in her act bit a wandering child at the house of
horror she created for Halloween. Thomas considers the monkey Gia to
be her “emotional support animal.”

Thomas goes all out for the holiday and converted her home into a
house of horrors, including a maze. She said that the area with Gia
was closed off and, as for petting, “no one is allowed to touch her!”
She publicly insisted “No one was viciously attack this a lie, a whole
lie! She was not apart of any haunted house, the kid did not have
permission to be on the other side of my property!” She even posted a
walk-through video of the scene to show the steps that a child would
have to take to get to the monkey.

    Don’t worry folks I got the #MonkeyGate video pic.twitter.com/TAy6leBqDS
    — Christian Sykes (@ctsykes13) November 2, 2021

She insists in the video that she knows all of the governing legal
rules and shows the path in detail. It is not helpful on the defense
side: it is not a long path and easy to see how a child might get
lost. She later deleted her account (likely after her attorney
regained consciousness).

The case raises an array of torts including animal liability, licensee
liability, negligence, and attractive nuisance claims.

In 2022, we often added conversion to the usual torts where multiple
versions of the new giant skeleton were stolen, including one
particularly ham-handed effort in Austin, Texas caught on video tape:

* * *

In Berea, Ohio, the promoters of the 7 Floors of Hell haunted house at
the Cuyahoga County Fairgrounds appreciate realism but one employee
took it a bit too far. An actor brandished this real bowie knife as a
prop while pretending to stab an 11-year-old boy’s foot. He then
stabbed him.

The accident occurred when the actor, 22, approached the boy and
stabbed at the ground as a scare tactic. He got too close and
accidentally cut through the child’s shoe, piercing a toe.

The injury was not serious since the boy was treated at the scene and
continued through the haunted house.

The case raises an interesting question of “respondeat superior” for
the negligent acts by employees in the course of employment. The
question is what is in the scope of employment.  The question is often
whether an employee was on a “detour” or “frolic.”  A detour can be
outside of an employer’s policies or guidelines but will be the basis
for liability as sufficiently related to the employment.  A frolic is
a more serious deviation where the employee is acting in his own
capacity or for his own interests.

In this case, the actor was clearly within his scope of employment in
trying to scare the visitors. However, he admitted that he bought the
knife in his personal capacity and agreed it “was not a good idea” to
use it at the haunted house, according to FOX 8. That still does not
negate the negligence — both direct and vicarious liability. There was
a failure to monitor employees and safeguard the scene. His negligence
is also likely attributable to the employer. Finally, this would
constitute battery as a reckless, though unintended, act.

* * *

In 2020, parents in Indiana were given a warning in a Facebook post
that the Indiana State Police seized holiday edibles featuring
packaging that resembles that of actual name brands — but with the
word “medicated” printed on the wrapper along with cannabis symbols.

The packaging makes it easy for homeowners to confuse packages and
give out drugged candy.  Indeed, last year, two children were given
THC-infused gummies while trick-or-treating, according to police in
Waterford, Conn.. Such candies include the main active ingredient
linked to the psychedelic effects of cannabis – the plant from which
marijuana is derived.

Even an accidental distribution of such infused candies would
constitute child endangerment and be subject to both negligence and
strict liability actions in torts.

* * *

I previously have written how the fear of razor blades in apples
appears an urban legend. Well, give it enough time and someone will
prove you wrong. That is the allegation of Waterbury, Connecticut
police who say that Jason A. Racz, 37, put razor blades in candy bags
of at least two trick-or-treaters. Racz’ razor defense may not be
particularly convincing to the average juror. According to police,
“Racz explained that the razor blades were accidentally spilled or put
into the candy bowl he used to hand out candy from.” However, police
noted that he “provided no explanation as to how the razor blades were
handed out to the children along with the candy.”

The charge was brought soon after Halloween in 2019. Racz is now
charged with risk of injury to a minor, reckless endangerment and
interfering with a police officer. He could also be charged with
battery and intentional infliction of emotional distress, but it is
not clear if any children were injured.

*  *  *

Steven Novak, an artist from Dallas, Texas, believes that Halloween
should be a bit more than a traditional plastic pumpkin and a smiling
ghost.  Police were called to his home in Texas over a possible
murder. They found a dummy impaled on a chainsaw with fake blood;
another dummy hanging from his roof; a wheelbarrow full of fake
dismembered body parts and other gory scenes.  Neighbors called the
display too traumatizing.  Police responded by taking pictures for
their families.

A tort action for intentional infliction of emotional distress is
likely to fail. There must be not just outrageous conduct but conduct
intended to cause severe emotional distress. Courts regularly exclude
injuries associated with the exercise of free speech or artistic
expression . . . even when accompanied by buckets of fake blood.

*  *  *

The Dorney Park and Wildwater Kingdom in Pennsylvania tells customers
that, if they come to their Halloween Haunt, “Fear is waiting for
you.” In 2019, a new case was filed by Shannon Sacco and her daughter
over injuries sustained from “unreasonable scaring.” They are seeking
$150,000.

The Allentown Morning Call reported that “M.S.” went with friends to
the amusement park and was immediately approached by costumed
characters. She said that she told them that she did not want to be
scared and backed away. A little further on into the park however a
costumed employee allegedly ran up behind her and shouted loudly. The
startled girl fell forward and suffered what were serious but
unspecified injuries. She alleges ongoing medical issues and inability
to return to fully functioning activities. The lawsuit also alleges
that the park failed to inform Sacco or her daughter that they could
buy a glow-in-the-dark “No Boo” necklace to ward off costumed
employees. The obvious issue beyond the alleged negligence of the Park
is the plaintiffs’ own conduct. Pennsylvania is a comparative
negligence state so contributory negligence by the plaintiffs would
not be a bar to recovery. See Pennsylvania General Assembly Statute
§7102. However, it is a modified comparative negligence state so they
must show that they are 50 percent or less at fault. If they are found
51 percent at fault, they are barred entirely from recovery. Even if
they can recover, their damages are reduced by the percentage of their
own fault in going to a park during a Halloween-themed event.

*  *  *

In 2019, there is a rare public petition to shutdown a haunted house
that has been declared to be a “torture chamber.” The move to “shut
down McKamey Manor” that has been signed by thousands who believe Russ
McKamey, the owner of McKamey Manor, has made his house so scary that
it constitutes torture, including an allegation of waterboarding of
visitors. The haunted house requires participants to get a doctor’s
note and sign a 40-page waiver before they enter. People are seeking
the closure of the houses located in Summertown, Tennessee and
Huntsville, Alabama. McKamey insists that it is just a “crazy haunted
house” and stops well short of the legal-definition of torture. The
question is whether consent vitiates any extreme frights or contacts.

He is also clear in both the waiver and the website that the house is
an “extreme haunted attraction” for legal adults who “must be in GREAT
HEALTH to participate.” Not only do people enter with full knowledge
but there is no charge. McKamey owns five dogs and only requires a bag
of dog food for entry. Presumably the food is cursed.

*  *  *

An earlier case was recently made public from an accident on October
15, 2011 in San Diego. Scott Griffin and friends went to the Haunted
Trail in San Diego. The ticket warns of “high-impact scares” along a
mile path with actors brandishing weapons and scary items. Griffen,
44, and his friends went on the trail and were going out of what they
thought was an exit. Suddenly an actor jumped out as part of what the
attraction called “the Carrie effect” of a last minute scare. While
Griffen said that he tried to back away, the actor followed him with a
running chain saw. He fell backwards and injured his wrists.

The 2013 lawsuit against the Haunted Hotel, Inc., in the Superior
Court of California, County of San Diego, alleged negligence and
assault. However, Superior Court Judge Katherine Bacal granted a
motion to dismiss based on assumption of the risk. She noted that
Griffin “was still within the scare experience that he purchased.”
After all, “Who would want to go to a haunted house that is not
scary?”

Griffen then appealed and the attorney for the Haunted Hotel quoted
Hunter S. Thompson: “Buy the ticket, take the ride.” Again, the court
agreed. In upholding the lower court, Justice Gilbert Nares wrote,
“Being chased within the physical confines of the Haunted Trail by a
chain saw–carrying maniac is a fundamental part and inherent risk of
this amusement. Griffin voluntarily paid money to experience it.”

*  *  *

In 2018, a case emerged in Madison, Tennessee from the Nashville
Nightmare Haunted House.   James “Jay” Yochim and three of his pals
went to the attraction composed of  four separate haunted houses, an
escape room, carnival games and food vendors.  In the attraction,
people are chased by characters with chainsaws and other weapons.
They were not surprised therefore when a man believed to be an
employee in a Halloween costume handed Tawnya Greenfield a knife and
told her to stab Yochim.  She did and thought it was all pretend until
blood started to pour from Yochim’s arm. The knife was real and the
man was heard apologizing “I didn’t know my knife was that sharp.”

It is not clear how even stabbing with a dull knife would be considered safe.

The attraction issued a statement:

“As we have continued to review the information, we believe that an
employee was involved in some way, and he has been placed on leave
until we can determine his involvement. We are going over all of our
safety protocols with all of our staff again, as the safety and
security of all of our patrons is always our main concern. We have not
been contacted by the police, but we will cooperate fully with any
official investigation.”

The next scary moment is likely to be in the form of a torts
complaint.  Negligence against the company under respondeat superior
is an obvious start. There is also a novel battery charge where he
could claim that he was stabbed by trickery or deceit of a third
person. There are also premises liability issues for invitees.  As for
Greenfield, she claims to have lacked consent due to a
misrepresentation.  She could be charged with negligence or a
recklessness-based theory of battery, though that seems less likely.
Finally, there is an interesting possible claim of negligent
infliction of emotional distress in being tricked or misled into
stabbing an individual.

*  *  *

Last year, a 21-year-old man surnamed Cheung was killed by a moving
coffin in a haunted house in Hong Kong’s Ocean Park.   The attraction
is called “Buried Alive” and involves hopping into coffins for a
downward slide into a dark and scary space. The ride promises to
provide people with the “experience of being buried alive alone,
before fighting their way out of their dark and eerie grave.” Cheung
took a wrong turn and went backstage — only to be hit by one of the
metal coffins.  The hit in the head killed Cheung who was found later
in the haunted house.

While there is no word of a tort lawsuit (and tort actions are rarer
in Hong Kong), the case is typical of Halloween torts involving
haunted houses.  The decor often emphasizes spooky and dark environs
which both encourage terror and torts among the participants.  In this
case, an obvious claim could be made that it is negligence to allow
such easy access to the operational area of the coffin ride —
particularly in a dark space.  As a business invitee, Cheung would
have a strong case in the United States.

*  *  *

A previous addition to the Spooky torts was the odd case of Assistant
Prosecutor Chris White. White clearly does not like spiders, even fake
ones. That much was clear given his response to finding fake spiders
scattered around the West Virginia office for Halloween. White pulled
a gun and threatened to shoot the fake spiders, explaining that he is
“deathly afraid of spiders.” It appears that his arachnophobia (fear
of spiders) was not matched by a hoplophobia (fear of firearms).

The other employees were reportedly shaken up and Logan County
Prosecuting Attorney John Bennett later suspended White. Bennett said
“He said they had spiders everyplace and he said he told them it
wasn’t funny, and he couldn’t stand them, and he did indeed get a gun
out. It had no clip in it, of course they wouldn’t know that, I
wouldn’t either if I looked at it, to tell you the truth.” It is not
clear how White thought threatening the decorative spiders would keep
them at bay or whether he was trying to deter those who sought to deck
out the office in a Halloween theme. He was not charged by his
colleagues with a crime but was suspended for his conduct.

This is not our first interaction with White. He was the prosecutor in
the controversial (and in my view groundless) prosecution of Jared
Marcum, who was arrested after wearing a NRA tee shirt to school.

*  *  *

Another new case from the last year involves a murder. Donnie
Cochenour Jr., 27, got a seasonal break (at least temporarily) on
detecting his alleged murder of Rebecca J. Cade, 31. Cade’s body was
left hanging on a fence and was mistaken by neighbors as a Halloween
decoration. The “decoration” was found by a man walking his dog and
reported by construction workers. A large rock was found with blood on
it nearby. Donnie Cochenour Jr., 27, was later arrested and ordered
held on $2 million bond after he pleaded not guilty to murder.

Cade apparently had known Cochenour since he was a child — a
relationship going back 20 years. Cochenour reportedly admitted that
they had a physical altercation in the field. Police found a blood
trail that indicates that Cade was running from Cochenour and tried to
climb the fence in an attempt to get away. She was found hanging from
her sleeve and is believed to have died on the fence from blunt force
trauma to the head and neck. Her body exhibited “defensive wounds.”

When police arrested Cochenour, they found blood on is clothing.

*  *  *

In 2015, federal and state governments were cracking down on cosmetic
contact lenses to give people spooky eyes. Owners and operators of 10
Southern California businesses were criminally charged in federal
court with illegally selling cosmetic contact lenses without
prescriptions. Some of the products that were purchased in connection
with this investigation were contaminated with dangerous pathogens
that can cause eye injury, blindness and loss of the eye.

The products are likely to result in a slew of product liability actions.

*  *  *

Another 2015 case reflects that the scariest part of shopping for
Halloween costumes or decorations may be the trip to the Party Store.
Shanisha L. Saulsberry sued U.S. Toy Company, Inc. after she was
injured shopping for Halloween costumes and a store rack fell on her.
The jury awarded Saulsberry $7,216.00 for economic damages. She
appealed the damages after evidence of her injuries were kept out of
the trial by the court. However, the Missouri appellate court affirmed
the ruling.

*  *  *

The case of Castiglione v. James F. Q., 115 A.D.3d 696, shows a
classic Halloween tort. The lawsuit alleged that, on Halloween 2007,
the defendant’s son threw an egg which hit the plaintiff’s daughter in
the eye, causing her injuries. The plaintiff also brought criminal
charges against the defendant’s son arising from this incident and the
defendant’s son pleaded guilty to assault in the third degree (Penal
Law § 120.00 [2]). However, at his deposition, the defendant’s son
denied throwing the egg which allegedly struck the plaintiff’s
daughter.

Because of the age of the accused, the case turned on the youthful
offender statute (CPL art 720) that provides special measures for
persons found to be youthful offenders which provides “Except where
specifically required or permitted by statute or upon specific
authorization of the court, all official records and papers, whether
on file with the court, a police agency or the division of criminal
justice services, relating to a case involving a youth who has been
adjudicated a youthful offender, are confidential and may not be made
available to any person or public or private agency [with certain
exceptions not relevant here]” (CPL 720.35 [2]). This covers both the
physical documents constituting the official record and the
information contained within those documents. Thus, in relation to the
Halloween egging, the boy was protected from having to disclose
information or answer questions regarding the facts underlying the
adjudication

*  *  *

We discussed the perils of pranks and “jump frights,” particularly
with people who do not necessarily consent. In the case of Christian
Faith Benge, there appears to have been consent in visiting a haunted
house. The sophomore from New Miami High School in Ohio died from a
prior medical condition at the at Land of Illusion haunted house. She
was halfway through the house with about 100 friends and family
members when she collapsed.

She had an enlarged heart four times its normal size. She also was
born with congenital diaphragmatic hernia, which prevents the lungs
from developing normally. This added stress to the heart. In such a
case, consent and comparative negligence issues effectively bar
recovery in most cases. It is a terrible loss of a wonderful young
lady. However, some fatalities do not always come with liability and
this appears such a case. Source: Journal News

*  *  *

As discussed earlier, In Franklin County, Tennessee, children may want
to avoid the house of Dale Bryant Farris, 65, this Halloween . . . or
houses near him. Bryant was arrested after shooting a 15-year-old boy
who was with kids toilet-papering their principal’s front yard. Bryant
came out of his house a couple of houses down from the home of
Principal Ken Bishop and allegedly fired at least two blasts — one
hitting a 15-year-old boy in the right foot, inner left knee, right
palm, right thigh and right side of his torso above the waistline.

Tennessee is a Castle Doctrine state and we have seen past cases like
the notorious Tom Horn case in Texas where homeowners claimed the
right to shoot intruders on the property of their neighbors. It is not
clear if Bryant will argue that he was trying to stop intruders under
the law, but it does not appear a good fit with the purpose or
language of the law. Farris faces a charge of aggravated assault and
another of reckless endangerment. He could also face civil liability
from the boy’s family. This would include assault and battery. There
is a privilege of both self-defense and defense of others. This
privilege included reasonable mistaken self-defense or defense of
others. This would not fit such a claim since he effectively pursued
the boys by going to a neighbor’s property and there was no appearance
of a threat or weapon since they were only armed with toilet paper.

The good news is that Farris can now discard the need for a costume.
He can go as himself at Halloween . . . as soon as he is out of jail.

*  *  *

As shown below, Halloween nooses have a bad record at parties. In
2012, a club called Pink Punters had a decorative noose that it had
used for a number of years that allowed party goers to take pictures
as a hanging victim on Halloween. Of course, you guessed it. A 25-year
old man was found hanging from the noose in an accidental
self-lynching at the nightclub in England.

The case would appear easy to defend in light of the assumption of the
risk and patent danger. The noose did not actually tighten around
necks. Moreover, this is England where tort claims can be more
challenging. In the United States, however, there would remain the
question of a foreseeable accident in light of the fact that patrons
are drinking heavily and drugs are often present at nightclubs. Since
patrons are known to put their heads in the noose, the combination is
intoxication and a noose is not a particularly good mix.

*  *  *

Grant v. Grant.

A potential criminal and tort case comes to us from Pennsylvania
where, at a family Halloween bonfire, Janet Grant spotted a skunk and
told her son Thomas Grant to fetch a shotgun and shoot it. When he
returned, Janet Grant shined a flashlight on the animal while her son
shot it. It was only then that they discovered that Thomas Grant had
just shot his eight-year-old cousin in her black and white Halloween
costume. What is amazing is that authorities say that they are
considering possible animal gaming charges.

Fortunately, the little girl survived with a wound to the shoulder and abdomen.

The police in Beaver County have not brought charges and alcohol does
not appear to have been a factor.

Putting aside the family connection (which presumably makes the
likelihood of a lawsuit unlikely), there is a basis for both battery
and negligence in such a wounding. With children in the area, the
discharge of the firearm would seem pretty unreasonable even with the
effort to illuminate “the animal.” Moreover, this would have to have
been a pretty large skunk to be the size of an eight-year-old child.

Just for the record, the average weight of a standard spotted skunk in
that area is a little over 1 pound. The biggest skunk is a hog-nosed
skunk that can reach up to 18 pounds.

*  *  *

We also have a potential duel case out of Aiken, South Carolina from
one year ago. A 10-year-old Aiken trick-or-treater pulled a gun on a
woman who joked that she wanted take his candy on Halloween. Police
found that his brother, also ten, had his own weapon.

The 28-year-old woman said that she merely joked with a group of 10 or
so kids that she wanted their candy when the ten-year-old pulled out a
9 mm handgun and said “no you’re not.” While the magazine was not in
the gun, he had a fully loaded magazine in his possession. His brother
had the second gun. Both appear to have belonged to their grandfather.

The children were released to their parents and surprisingly there is
no mention of charges against the grandfather. While the guns appear
to have been taken without his permission, it shows great negligence
in the handling and storage of the guns.

What would be interesting is a torts lawsuit by the woman for assault
against the grandfather. The actions of third parties often cut off
liability as a matter of proximate causation, though courts have held
that you can be liable for creating circumstances where crimes or
intentional torts are foreseeable. For example, a landlord was held
liable in for crimes committed in his building in Kline v. 1500
Massachusetts Avenue. Here the grandfather’s negligence led to the use
of the guns by these children. While a lawsuit is unlikely, it would
certainly be an interesting — and not unwarranted — claim.

*  *  *

Tauton High School District

The Massachusetts case of Smith v. Taunton High School involves a
Halloween prank gone bad. A teacher at Taunton High School asked a
15-year-old student to answer a knock on the classroom door. The boy
was startled when he came face to face with a man in a mask and
carrying what appeared to be a running chainsaw. The student fell
back, tripped and fractured a kneecap. His family is now suing though
the state cap on such lawsuits is $100,000.

Dussault said the family is preparing a lawsuit, but is exploring ways
to avoid a trial and do better than the $100,000 cap when suing city
employees. This could make for an interesting case, but would be
better for the Plaintiffs as a bench versus a jury trial. Many jurors
are likely to view this as simply an attempt at good fun by the
teacher and an unforeseeable accident.

Source: CBS

*  *  *

In Florida, a woman has sued for defamation, harassment and emotional
distress after her neighbor set up decorations that included an insane
asylum sign that pointed to her yard and a fake tombstone with an
inscription she viewed as a reference to her single status. It read,
“At 48 she had no mate no date/ It’s no debate she looks 88.”

This could be a wonderful example of an opinion defense to defamation.
As for emotional distress, I think the cause of the distress pre-dates
Halloween.

*  *  *

Pieczonka v. Great America (2012)

A family is suing Great America for a tort in 2011 at Great Falls.
Father Marian Pieczonka alleged in his complaint that his young
daughter Natalie was at the park in Gurnee, Illinois for the
Halloween-themed Fright Fest when a park employee dressed in costume
jumped out of a port-a-potty and shot her with a squirt gun. He then
reported chased the screaming girl until she fell and suffered
injuries involving scrapes and bruises. The lawsuit alleges negligence
in encouraging employees to chase patrons given the tripping hazards.

They are asking $30,000 in the one count complaint but could face
assumption or comparative negligence questions, particularly in
knowingly attending an event called “Fright Fest” where employees were
known to jump out at patrons.

*  *  *

A lawsuit appears inevitable after a tragic accident in St. Louis
where a 17-year-old girl is in a critical condition after she became
tangled in a noose at a Halloween haunted house called Creepyworld.
The girl was working as an actress at the attraction and was found
unconscious. What is particularly chilling is that people appeared to
have walked by her hanging in the house and thought she was a
realistic prop.

Notably, the attraction had people walk through to check on the
well-being of actors and she was discovered but not for some time
after the accident. She is in critical condition. Creepyworld employs
100 people and can expect a negligence lawsuit.

*  *  *

Rabindranath v. Wallace (2010)

Peter Wallace, 24, was returning on a train with fellow Hiberinian
soccer fans in England — many dressed in costumes (which the English
call “fancy dress.”) One man was dressed as a sheep and Wallace
thought it was funny to constantly flick his lighter near the cotton
balls covering his body — until he burst into flames. Friends then
made the matter worse by trying to douse the flames but throwing
alcohol on the flaming man-sheep. Even worse, the victim Arjuna
Rabindranath, 24, is an Aberdeen soccer fan. Rabindranath’s costume
was composed of a white tracksuit and cotton wool.

Outcome: Wallace is the heir to a large farm estate and agreed to pay
damages to the victim, who experienced extensive burns.

What is fascinating is the causation issue. Here, Wallace clearly
caused the initial injury which was then made worse by the world’s
most dim-witted rescue attempt in the use of alcohol to douse a fire.
In the United States, the original tortfeasor is liable for such
injuries caused by negligent rescues. Indeed, he is liable for injured
rescuers. The rescuers can also be sued in most states. However, many
areas of Europe have good Samaritan laws protecting such rescuers.
Notably, Wallace had a previous football-related conviction which was
dealt with by a fine. In this latest case, he agreed to pay 25,000 in
compensation.

The case is obviously similar to one of our prior Halloween winners
below: Ferlito v. Johnson & Johnson

*  *  *

Perper v. Forum Novelties (2010)

Sherri Perper, 56, of Queens, New York has filed a personal injury
lawsuit due to defective shoes allegedly acquired from Forum
Novelties. The shoes were over-sized clown shoes that she was wearing
as part of her Halloween costume in 2008. She tripped and fell.

She is reportedly claiming that the shoes were dangerous. While “open
and obvious” is no longer an absolute defense in such products cases,
such arguments may still be made to counter claims of defective
products. In most jurisdictions, you must show that the product is
more dangerous than the expectations of the ordinary consumer. It is
hard to see how Perper could be surprised that it is a bit difficult
to walk in over-sized shoes. Then there is the problem of assumption
of the risk.

*  *  *

Dickson v. Hustonville Haunted House and Greg Walker (2009) Glenda
Dickson, 51, broke four vertebrae in her back when she fell out of a
second story window left open at the Hustonville Haunted House, owned
by Greg Walker.

Dickson was in a room called “The Crying Lady in the Bed” when one of
the actors came up behind the group and started screaming. Everyone
jumped in fright and Dickson jumped back through an open window that
was covered with a sheet — a remarkably negligent act by the haunted
house operator. She landed on a fire escape and then fell down some
stairs.

*  *  *

Maryland v. Janik (2009)

Sgt. Eric Janik, 37, went to a haunted house called the House of
Screams with friends and when confronted by a character dressed as
Leatherface with a chainsaw (sans the chain, of course), Janik pulled
out his service weapon and pointed it at the man, who immediately
dropped character, dropped the chainsaw, and ran like a bat out of
Halloween Hell.

Outcome: Janik is charged with assault and reckless endangerment for
his actions. Charges pending.

*  *  *

Patrick v. South Carolina (2009) Quentin Patrick, 22, an ex-convict in
Sumter, South Carolina shot and killed a trick-or-treater T.J.
Darrisaw who came to his home on Halloween — spraying nearly 30 rounds
with an assault rifle from inside his home after hearing a knock on
the door. T.J.’s 9-year- old brother, Ahmadre Darrisaw, and their
father, Freddie Grinnell, were injured but were released after being
treated at a hospital.

Patrick left his porch light on — a general signal for kids that the
house was open for trick and treating. The boy’s mother and toddler
sibling were in the car.

Patrick emptied the AK-47 — shooting at least 29 times through his
front door, walls and windows after hearing the knock. He said that he
had been previously robbed. That may be so, but it is unclear what an
ex-con was doing with a gun, let alone an AK-47.

OUTCOME: Charges pending for murder.

*  *  *

Kentucky v. Watkins (2008)

As a Halloween prank, restaurant manager Joe Watkins of the Chicken
Ranch in Paris, Kentucky thought it was funny to lie in a pool of
blood on the floor. After seeing Watkins on the floor, the woman went
screaming from the restaurant to report the murder. Watkins said that
the prank was for another employee and that he tried to call the woman
back on her cell phone.

OUTCOME: Under Kentucky law, a person can be charged with a false
police report, even if he is not the one who filed it. The police
charged Watkins for causing the woman to file the report — a highly
questionable charge.

*  *  *

Mays v. Gretna Athletic Boosters␣95-717 (La.App. 5 Cir. 01/17/96)

“Defendant operated a haunted house at Mel Ott Playground in Gretna to
raise money for athletic programs. The haunted house was constructed
of 2×4s and black visqueen. There were numerous cubbyholes where
“scary” exhibits were displayed. One booster club member was stationed
at the entrance and one at the exit. Approximately eighteen people
participated in the haunted house by working the exhibits inside. Near
and along the entrance of the haunted house was a bathroom building
constructed of cinder blocks. Black visqueen covered this wall.

Plaintiff and her daughter’s friend, about 10 years old, entered the
haunted house on October 29, 1988. It was nighttime and was dark
inside. Plaintiff testified someone jumped out and hollered, scaring
the child into running. Plaintiff was also frightened and began to
run. She ran directly into the visqueen-covered cinder block wall.

There was no lighting in that part of the haunted house. Plaintiff hit
the wall face first and began bleeding profusely from her nose. She
testified two surgeries were required to repair her nose.”

OUTCOME: 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.

As found by the Trial Court, defendant met this duty by constructing
the haunted house with rooms of adequate size and providing adequate
personnel and supervision for patrons entering the house. Defendant’s
duty did not extend to protecting plaintiff from running in a dark
room into a wall. Our review of the entire record herein does not
reveal manifest error committed by the Trial Court or that the Trial
Court’s decision was clearly wrong. Plaintiff has not shown the
haunted house was unreasonably dangerous or that defendant’s actions
were unreasonable. Thus, the Trial Court judgment must be affirmed.

*  *  *

Powell v. Jacor Communications␣

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

320 F.3d 599 (6th Cir.2003)

“On October 15, 1999, Powell visited a Halloween season haunted house
in Lexington, Kentucky that was owned and operated by Jacor. She was
allegedly hit in the head with an unidentified object by a person she
claims was dressed as a ghost. Powell was knocked unconscious and
injured. She contends that she suffered a concussion and was put on
bed rest and given medications by emergency-room physicians. Powell
further claims that she now suffers from several neuropsychological
disorders as a result of the incident.”

OUTCOME: Reversed dismissal on the basis of tolling of statute of limitations.

*  *  *

Kansas City Light & Power Company v. Trimble␣

315 Mo. 32; 285 S.W. 455 (1926)

Excerpt: “A shapely pole to which, twenty-two feet from the ground is
attached a non-insulated electric wire . . Upon a shapely pole were
standard steps eighteen inches apart; about seventeen feet from the
ground were telephone wires, and five feet above them was a
non-insulated electric light wire. On Halloween, about nine o’clock, a
bright fourteen-year-old boy and two companions met close to the pole,
and some girls dressed as clowns came down the street. As they came
near the boy, saying, “Who dares me to walk the wire?” began climbing
the pole, using the steps, and ascended to the telephone cables, and
thereupon his companions warned him about the live wire and told him
to come down. He crawled upon the telephone cables to a distance of
about ten feet from the pole, and when he reached that point a
companion again warned him of the live wire over his head, and
threatened to throw a rock at him and knock him off if he did not come
down. Whereupon he turned about and crawled back to the pole, and
there raised himself to a standing position, and then his foot
slipped, and involuntarily he threw up his arm, his hand clutched the
live wire, and he was shocked to death.”

OUTCOME:

Frankly, I am not sure why the pole was so “shapely” but the result
was disappointing for the plaintiffs. Kansas City Light & Power
Company v. Trimble: The court held that the appellate court extended
the attractive nuisance doctrine beyond the court’s ruling decisions.
The court held that appellate court’s opinion on the contributory
negligence doctrine conflicted with the court’s ruling decisions. The
court held that the administrator’s case should never have been
submitted to the jury. The court quashed the appellate opinion.

“To my mind it is inconceivable that a bright, intelligent boy, doing
well in school, past fourteen years of age and living in the city,
would not understand and appreciate the fact that it would be
dangerous to come in contact with an electric wire, and that he was
undertaking a dangerous feat in climbing up the pole; but even if it
may be said that men might differ on that proposition, still in this
case he was warned of the wire and of the danger on account of the
wire and that, too, before he had reached a situation where there was
any occasion or necessity of clutching the wire to avoid a fall. Not
only was he twice warned but he was repeatedly told and urged to come
down.”

*  *  *

Purtell v. Mason␣ 2006 U.S. Dist. LEXIS 49064 (E.D. Ill. 2006)

“The Purtells filed the present lawsuit against Defendant Village of
Bloomingdale Police Officer Bruce Mason after he requested that they
remove certain Halloween tombstone “decorations” from their property.
Evidence presented at trial revealed that the Purtells placed the
tombstones referring to their neighbors in their front yard facing the
street. The tombstones specifically referred to their neighbors, who
saw the language on the tombstones. For instance, the tombstone that
referred to the Purtells’ neighbor James Garbarz stated:

    Here Lies Jimmy, The OlDe Towne IdioT MeAn As sin even withouT his
Gin No LonGer Does He wear That sTupiD Old Grin . . . Oh no, noT where
they’ve sent Him!

The tombstone referring to the Purtells’ neighbor Betty Garbarz read:

    BeTTe wAsN’T ReADy, BuT here she Lies Ever since that night she
DieD. 12 feet Deep in this trench . . . Still wasn’T Deep enough For
that wenches Stench!

In addition, the Purtells placed a Halloween tombstone in their yard
concerning their neighbor Diane Lesner stating:

    Dyean was Known for Lying So She was fried. Now underneath these
daises is where she goes crazy!!

Moreover, the jury heard testimony that Diane Lesner, James Garbarz,
and Betty Garbarz were upset because their names appeared on the
tombstones. Betty Garbarz testified that she was so upset by the
language on the tombstones that she contacted the Village of
Bloomingdale Police Department. She further testified that she never
had any doubt that the “Bette” tombstone referred to her. After seeing
the tombstones, she stated that she was ashamed and humiliated, but
did not talk to Jeffrey Purtell about them because she was afraid of
him.

Defense counsel also presented evidence that the neighbors thought the
language on the tombstones constituted threats and that they were
alarmed and disturbed by their names being on the tombstones. James
Garbarz testified that he interpreted the “Jimmy” tombstone as a
threat and told the police that he felt threatened by the tombstone.
He also testified that he had concerns about his safety and what
Jeffrey Purtell might do to him.”

OUTCOME: The court denied the homeowners’ post-trial motion for
judgment as a matter of law pursuant to and motion for a new trial.
Viewing the evidence and all reasonable inferences in a light most
favorable to Officer Mason, a rational jury could conclude that the
language on the tombstones constituted threats, that the neighbors
were afraid of Jeffrey Purtell, and that they feared for their safety.
As such the Court will not disturb the jury’s conclusion that the
tombstones constituted fighting words — “those which by their very
utterance inflict injury or tend to incite an immediate breach of the
peace.”

*  *  *

Goodwin v. Walmart

2001 Ark. App. LEXIS 78

“On October 12, 1993, Randall Goodwin went to a Wal-Mart store located
on 6th Street in Fayetteville, Arkansas. He entered through the front
door and walked toward the sporting goods department. In route, he
turned down an aisle known as the seasonal aisle. At that time, it was
stocked with items for Halloween. This aisle could be observed from
the cash registers. Mr. Goodwin took only a few steps down the aisle
when he allegedly stepped on a wig and fell, landing on his right hip.
As a result of the fall, Mr. Goodwin suffered severe physical injury
to his back, including a ruptured disk. Kelly Evans, an employee for
appellee, was standing at the end of her check-out stand when Mr.
Goodwin approached her and informed her that he had fallen on an item
in the seasonal aisle. She stated that she “saw what he was talking
about.”

OUTCOME: Judgment affirmed because the pleadings, depositions, and
related summary judgment evidence did not show that there was any
genuine issue of material fact as appellant customer did not establish
a plastic bag containing the Halloween wig which allegedly caused him
to slip and fall was on the floor as the result of appellee’s
negligence or it had been on the floor for such a period of time that
appellee knew or should have known about it.

*  *  *

Eversole v. Wasson␣ 80 Ill. App. 3d 94 (Ill. 1980)

Excerpt: “The following allegations of count I, directed against
defendant Wasson, were incorporated in count II against the school
district: (1) plaintiff was a student at Villa Grove High School which
was controlled and administered by the defendant school district, (2)
defendant Wasson was employed by the school district as a teacher at
the high school, (3) on November 1, 1978, at approximately 12:30 p.m.,
Wasson was at the high school in his regular capacity as a teacher and
plaintiff was attending a regularly scheduled class, (4) Wasson sought
and received permission from another teacher to take plaintiff from
that teacher’s class and talk to him in the hallway, (5) once in the
hallway, Wasson accused plaintiff of being one of several students he
believed had smashed Wasson’s Halloween pumpkin at Wasson’s home, (6)
without provocation from plaintiff, Wasson berated plaintiff, called
him vile names, and threatened him with physical violence while
shaking his fist in plaintiff’s face which placed plaintiff in fear of
bodily injury, (7) Wasson then struck plaintiff about the head and
face with both an open hand and a closed fist and shook and shoved him
violently, (8) as a result, plaintiff was bruised about the head,
neck, and shoulders; experienced pain and suffering in his head, body,
and limbs; and became emotionally distraught causing his school
performance and participation to be adversely affected . . .”

OUTCOME: The court affirmed that portion of the lower court’s order
that dismissed the count against the school district and reversed that
portion of the lower court’s order that entered a judgment in bar of
action as to this count. The court remanded the case to the lower
court with directions to allow the student to replead his count
against the school district.

*  *  *

Holman v. Illinois

47 Ill. Ct. Cl. 372 (1995)

“The Claimant was attending a Halloween party at the Illinois State
Museum with her grandson on October 26, 1990. The party had been
advertised locally in the newspaper and through flier advertisements.
The advertisement requested that children be accompanied by an adult,
to come in costume and to bring a flashlight. The museum had set up
different display rooms to hand out candy to the children and give the
appearance of a “haunted house.” The Claimant entered the Discovery
Room with her grandson.

Under normal conditions the room is arranged with tables and
low-seated benches for children to use in the museum’s regular
displays. These tables and benches had been moved into the
upper-right-hand corner of the Discovery Room next to the wall. In the
middle of the room, there was a “slime pot” display where the children
received the Halloween treat. The overhead fluorescent lights were
turned off; however, the track lights on the left side of the room
were turned on and dim. The track lights on the right side of the room
near the tables and benches were not lit. The room was dark enough
that the children’s flashlights could be clearly seen. There were
approximately 40-50 people in the room at the time of the accident.

The Claimant entered the room with her grandson. They proceeded in the
direction of the pot in the middle of the room to see what was going
in the pot. Her grandson then ran around the pot to the right corner
toward the wall. As the Claimant followed, she tripped over the corner
of a bench stored in that section of the room. She fell, making
contact with the left corner of the bench. She experienced great pain
in her upper left arm. The staff helped her to her feet. Her father
was called and she went to the emergency room. Claimant has testified
that she did not see the low-seating bench because it was so dimly lit
in the Discovery Room. The Claimant was treated at the emergency room,
where she was diagnosed with a fracture of the proximal humeral head
of her left arm as a result of the fall. Claimant returned home, but
was unable to work for 12 to 13 weeks.”

OUTCOME: “The Claimant has met her burden of proof. She has shown by a
preponderance of the evidence that the State acted negligently in
placing furnishings in a dimly-lit room where visitors could not know
of their location. The State did not exercise its duty of reasonable
care. For the foregoing reasons, the Claimant is granted an award of
$20,000.”

*  *  *

Ferlito v. Johnson & Johnson

771 F. Supp. 196 “Plaintiffs Susan and Frank Ferlito, husband and
wife, attended a Halloween party in 1984 dressed as Mary (Mrs.
Ferlito) and her little lamb (Mr. Ferlito). Mrs. Ferlito had
constructed a lamb costume for her husband by gluing cotton batting
manufactured by defendant Johnson & Johnson Products (“JJP”) to a suit
of long underwear. She had also used defendant’s product to fashion a
headpiece, complete with ears. The costume covered Mr. Ferlito from
his head to his ankles, except for his face and hands, which were
blackened with Halloween paint. At the party Mr. Ferlito attempted to
light his cigarette by using a butane lighter. The flame passed close
to his left arm, and the cotton batting on his left sleeve ignited.
Plaintiffs sued defendant for injuries they suffered from burns which
covered approximately one-third of Mr. Ferlito’s body.”

OUTCOME: Ferlito v. Johnson & Johnson: Plaintiffs repeatedly stated in
their response brief that plaintiff Susan Ferlito testified that “she
would never again use cotton batting to make a costume.” Plaintiffs’
Answer to Defendant JJP’s Motion for J.N.O.V., pp. 1, 3, 4, 5.
However, a review of the trial transcript reveals that plaintiff Susan
Ferlito never testified that she would never again use cotton batting
to make a costume. More importantly, the transcript contains no
statement by plaintiff Susan Ferlito that a flammability warning on
defendant JJP’s product would have dissuaded her from using the cotton
batting to construct the costume in the first place. At oral argument
counsel for plaintiffs conceded that there was no testimony during the
trial that either plaintiff Susan Ferlito or her husband, plaintiff
Frank J. Ferlito, would  have acted any different if there had been a
flammability warning on the product’s package. The absence of such
testimony is fatal to plaintiffs’ case; for without it, plaintiffs
have failed to prove proximate cause, one of the essential elements of
their negligence claim.

In addition, both plaintiffs testified that they knew that cotton
batting burns when it is exposed to flame. Susan Ferlito testified
that she knew at the time she purchased the cotton batting that it
would burn if exposed to an open flame. Frank Ferlito testified that
he knew at the time he appeared at the Halloween party that cotton
batting would burn if exposed to an open flame. His additional
testimony that he would not have intentionally put a flame to the
cotton batting shows that he recognized the risk of injury of which he
claims JJP should have warned. Because both plaintiffs were already
aware of the danger, a warning by JJP would have been superfluous.
Therefore, a reasonable jury could not have found that JJP’s failure
to provide a warning was a proximate cause of plaintiffs’ injuries.

The evidence in this case clearly demonstrated that neither the use to
which plaintiffs put JJP’s product nor the injuries arising from that
use were foreseeable.

But in Trivino v. Jamesway Corporation, the following result:

The mother purchased cosmetic puffs and pajamas from the retailer. The
mother glued the puffs onto the pajamas to create a costume for her
child. While wearing the costume, the child leaned over the electric
stove. The costume caught on fire, injuring the child. Plaintiffs
brought a personal injury action against the retailer. The retailer
filed a third party complaint against the manufacturer of the puffs,
and the puff manufacturer filed a fourth party complaint against the
manufacturer of the fibers used in the puffs. The retailer filed a
motion for partial summary judgment as to plaintiffs’ cause of action
for failure to warn. The trial court granted the motion and dismissed
the actions against the manufacturers. On appeal, the court modified
the judgment, holding that the mother’s use of the puffs was not
unforeseeable as a matter of law and was a question for the jury. The
court held that because the puffs were not made of cotton, as thought
by the mother, there were fact issues as to the puffs’ flammability
and defendants’ duty to warn. The court held that there was no
prejudice to the retailer in permitting plaintiffs to amend their bill
of particulars.

OUTCOME: The court modified the trial court’s judgment to grant
plaintiffs’ motion to amend their bill of particulars, deny the
retailer’s motion for summary judgment, and reinstate the third party
actions against the manufacturers.