Halloween - Premises Liability and Duty of Care

By Mellania E. Safarian, Esq.

Odd and strange lawsuits are filed all the time. It is estimated that over 40 million lawsuits are filed every year in the United States. Of these, approximately 4.4 million cases are filed in the superior courts of California. The United States recognizes eleven annual federal holidays. And where there is a holiday, there are sure to be lawsuits. Halloween is certainly no exception. Lawsuits can be scary enough, but Halloween-related lawsuits add an additional spook factor.

For example, in Deborah Mays v. Gretna Athletic Boosters, Inc., plaintiff suffered a broken nose requiring two surgeries after entering a haunted house operated by the defendant. Plaintiff was frightened by an employee while inside the haunted house, causing her to run directly into a covered cinder block wall. Plaintiff argued that covering the cinder block wall inside a dark haunted house constituted an unreasonable dangerous condition. At trial, the Court disagreed and ruled that the “very nature of a Halloween haunted house is to frighten its patrons.” As such, the defendant had no duty to “guard against patrons reacting in bizarre, frightened, and unpredictable ways.” The Appellate Court affirmed on appeal.

Similarly, in Durmon v. Billings, plaintiff was walking through a scary corn maze when she was met by a man with a chainsaw dressed as Jason from the horror movie, Friday the 13th. Plaintiff was frightened and tried to run away but fell and broke her leg after slipping on the muddy ground. Plaintiff sued the owners of the corn maze for negligence and premises liability, arguing that the muddy ground presented a dangerous condition. The Court disagreed and granted defendant’s Motion for Summary Judgment, finding that the muddy conditions were open and obvious, and that plaintiff knew that the maze’s purpose was to scare her.

Even products are not exempt from the tricks and treats of Halloween. In Ferlito v. Johnson & Johnson Products, Inc., plaintiffs, husband and wife, attended a Halloween party dressed as Little Bo Peep and her sheep. The wife constructed a lamb costume for her husband using cotton balls manufactured by the defendant. During the Halloween party, plaintiff attempted to light a cigarette, causing the cotton to ignite. Plaintiffs sued defendant, arguing that a warning on the package would have prevented the accident. Though the jury initially found in favor of plaintiffs, the Court subsequently set aside the verdict. Plaintiffs appealed. On appeal, the Appellate Court affirmed the judgment of the lower Court, finding that cotton is “a simple product with all of its essential characteristics apparent, including flammability.”

With the tricks and treats associated with Halloween, it is no surprise that some Halloween lawsuits can be particularly strange. But not all Halloween lawsuits are as absurd as others. Some of these lawsuits very well result in plaintiffs being awarded monetary compensation while others are dismissed for lack of evidence to support their claim. Nevertheless, here are some ways to avoid a lawsuit this Halloween:

1. Clear your property of obstacles.

Limit the potential for trips, slips, and falls by clearing walkways of potential hazards, including Halloween decorations.

2. Turn on the lights.

While a dimmed or dark house may fit the spooky mood, it can be dangerous if people cannot see the walkways or objects on your property. Keep your property well-lit so trick-or-treaters can see where they are walking.

3. No open, lit candles outside.

An open, lit candle presents the risk of someone knocking it over or falling onto it, or a costume getting caught on fire. Use battery-operated candles or decorative lights outside instead.

4. Drive Extra Carefully.

There are a lot more people walking outside than on a normal night, so watch out for pedestrians in the street. Keep your eyes peeled for dark-colored costumes that may be hard to see. Do not expect trick-or-treaters to see you – some of them might be wearing a costume that obstructs their view. Be extra careful when pulling into or out of a driveway.

Halloween should be enjoyable, not dangerous. It is one of the most creative holidays in that it allows people to express themselves in costume and clothing, as well as make things and decorate in an interesting way.

However, with more than 2,000 haunted attractions each year, this seasonal industry leaves a lot of room for disgruntled trick-or-treaters. Ensure your attractions properly, or you are in for a scare. A more vigilant approach toward the celebration will help everyone have a safe and harmonious Halloween. Implementing simple precautions could be enough to prevent real blood from becoming part of the Halloween display. At Bradley, Gmelich + Wellerstein LLP, we wish you a spook-tacular and safe Halloween!

Mellania E. Safarian

Mellania E. Safarian, Esq. is an experienced civil litigator whose practice primarily focuses on the defense of a variety of insurance-related matters, including product liability, warranty litigation, premises liability, general civil liability, as well as government tort liability. From 2020 to 2023, Ms. Safarian has been recognized as a Rising Star honoree by Super Lawyers for Civil-Litigation-Defense.

Ms. Safarian received her J.D. from the University of San Diego School of Law where she graduated Cum Laude with a concentration in International Law. While in law school, Ms. Safarian earned multiple honors including the Order of Barristers and several CALI awards. Ms. Safarian was also a judicial extern to the Honorable Judge Larry A. Burns for the U.S. District Court, Southern District of California.