It is that time of year when our favorite “pumpkin spiced” products have popped up everywhere, whether you like pumpkin spice or not. With pumpkin spice also comes the desire for a good “spook” around Halloween time, when thrill-seekers get their adrenaline pumping from catching a scary movie, or, for the very bold and adventurous, visiting a haunted house or similarly themed attraction.
Haunted house-type attractions are not all created equal. Some could be hosted by a large operation or as small as a private invitation on private property. Regardless of the type of haunted house, California law requires many protections for patrons and business owners alike. While the patrons of such “scary” establishments assume many of the risks associated with this activity, the operator of a haunted house should be aware of certain liability risks and take the appropriate actions to operate their business with due care in order to minimize any potential personal injury claims.
Due to the very nature of the activities associated with a haunted house and the patron’s decision to voluntarily subject themselves to the scares that await them within, many personal injury claims will be barred under “the doctrine of primary assumption of risk.” Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156. However, even the assumption of risk doctrine “does not grant unbridled legal immunity to all defendants.” Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1059. An owner or operator still has a duty to use due care not to increase the risks to a participant over and above those inherent in the activity. (Id.) Thus, haunted house operators in California may still be found liable for injuries to their patrons that result from the operator’s negligence or a failure to maintain a safe environment.
5 Scary Haunted House Legal Risks
1. Failure to Maintain the Premises
Even haunted houses must adhere to California premises liability law. Haunted houses are often distinguishable from typical structures in that they may be temporary in nature, or are created from modifications that are performed on an existing space. However they are created, the operators of such attractions must maintain safe premises, including the use of proper lighting, exits, and structural conditions. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (“This requires persons ‘to maintain land in their possession and control in a reasonably safe condition.”) The operator or property owner will also need to comply with all applicable state or municipal regulations for such activities. While the Courts recognize that a haunted house by its very nature is supposed to surprise, confound and frighten its patrons, the operator should take care to avoid exposure to unsafe conditions that are not inherently part of a haunted house, such as exposed electrical wiring, or inadequately built structures.
2. Dangerous Props or Effects
Additionally, haunted houses can employ props and effects that can be seen as dangerous, like pyrotechnics or strobe lights, and such items should only be used in conjunction with all proper safety precautions. The operator of the attraction that has invited patrons to visit the property has a duty to inspect for any potentially dangerous conditions and to ensure the proper use of any equipment. Garner v. Pac. Elec. Ry. Co. (1962) 202 Cal. App. 2d 720, 729. This includes a duty to make reasonable inspections of any equipment used to create the desired atmosphere for the haunted house. Id. at 732.
3. Failure to Warn Patrons
The law recognizes that a business operator has no duty to warn an invitee as to the existence of an obvious danger located on the property, but the operator does have a duty to warn an invitee not only of conditions known by them to be dangerous but also of conditions which might have been found dangerous by the exercise of ordinary care. Chance v. Lawry’s Inc. (1962) 58 Cal.2d 368, 380. The business may assume that a patron who comes onto its property will perceive those conditions which would be obvious to him or her through the ordinary use of their senses. Beauchamp v. Los Gatos Golf Course (1969) 273 Cal. App. 2d 20, 27. While the business operator is not seen as an insurer of the patron’s safety, it must still use reasonable care to keep the premises in a reasonably safe condition and give warning of any latent or concealed peril. Id.
Of course, for the operator of a haunted house, such a warning poses a challenge since by its very nature, such an attraction is intended to surprise, startle and even frighten visitors. Any detailed or comprehensive warnings as to what the customer is about to encounter within seems contrary to the experience reasonably expected by someone who voluntarily seeks out the thrills of a haunted house. In the event of any personal injury claim from a patron, it is likely that the Court will recognize the nature of the activity and analyze the nature and scope of the warnings provided to the patrons in the spirit of the intended, and expected, experience.
The somewhat recent decision by the Court of Appeal in Griffin v. The Haunted Hotel, Inc., provides some guidelines as to what would be seen as a reasonable warning provided to the visitors to such an attraction. (2015) 242 Cal.App.4th 490. In Griffin, the plaintiff had injured his wrist when he tripped and fell while running away from a chainsaw wielding actor during his visit to “The Haunted Trail.” Id. at 493. The Court upheld the lower court’s order granting summary judgment in favor of the business operator when it found that plaintiff’s claims were barred by the primary assumption of risk doctrine, when it noted that the risk of a frighted run and fall is “inherent in the fundamental nature of a haunted house.” Id.
In its ruling, the Court went through the various warnings that were provided to the patrons before they entered the outdoor attraction. Each group that entered the trail were played an orientation tape that informed the visitors as to what to expect, including that the actors would chase them down if they ran, but that they would not be grabbed. The Court also noted that the operator provided the following warnings:
In 2011 the “Frequently Asked Questions” part of The Haunted Trail’s Website stated, “[Y]ou will not be grabbed or pushed,” and warned, “Running is the main cause of minor injuries. Make sure to follow the rules and DON’T run and you should be fine!” Signs at the entrance stated, “Due to natural surroundings of the park the ground may be uneven with some obstacles such as tree roots, rocks, etc. Be careful.”
Id. at 494. Thus, the haunted house operator can provide reasonable warnings to its patrons as to what to expect from the experience without being required to disclose the particulars of the events within the haunted house that are intended to scare and frighten the participants, since that is what they are paying for!
4. Failure to Train or Supervise Employees
In order to create the desired effect and experience for its patrons, most haunted houses will retain a number of employees or contractors, including those hired as actors to interact with the people as they move through the attraction. The operator of the haunted house must take the appropriate steps to adequately train its employees and inform them as to any limitations or guidelines with respect to their employment, especially use of any equipment, and their interaction with the visitors, such as a “no touch” policy, or whether the employees are permitted to chase after someone.
5. Failure to Address Reports of Danger
Finally, any potentially dangerous condition that is brought to the attention of the haunted house operator must be addressed and corrected within a reasonable timeframe, as liability can be found against a party with “actual or constructive knowledge” of such a condition along with the failure to correct within a “sufficient time.” Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206. The operator could also be found responsible for any dangerous condition created by the negligent conduct of its employees. Gilbert v. Pessin Grocery Co. (1955) 132 Cal.App.2d 212, 225. In order to limit any potential liability exposure, it is best to adequately document any such notices received by the business operator, as well as the nature and extent of the actions taken to correct the dangerous condition.
Final Frights: Key Takeaways for Haunted House Operators
Ultimately, any visitor to a haunted house-style attraction will assume a certain amount of risk when they enter the premises. Courts will likely side with the haunted house if the alleged injury resulted from normal, safe, and age-appropriate conditions created by the operator. Fear-related injuries, like anxiety attacks, are generally not considered fair grounds for a personal injury claim. “Under the primary assumption of risk doctrine, there is no duty to eliminate or protect a plaintiff against risks that are inherent in a sport or [recreational] activity.” Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115. Thus, it is certainly possible for a haunted house to provide the thrills and chills sought after by the visitors, but do so in a safe and reasonable manner so as to limit any potential liability exposure.
Don’t be afraid to bring the scare, as long as it is coated with a good amount of due care! For questions and more information , the lawyers at Bradley, Gmelich + Wellerstein LLP are here to help.
About the Author
Dean A. Reeves is a Special Counsel at Bradley, Gmelich + Wellerstein LLP with over 27 years’ experience in civil and business litigation. Dean has represented individuals and businesses in state and federal trial and appellate courts, arbitration proceedings, and before various administrative agencies. Dean’s areas of practice include general business litigation, premises liability, products liability, motor vehicle collisions, wrongful death, and private security firms, with liability defense and administrative licensing with governing state agencies.
