The Law of Haunted Houses

The unique place where there is no duty "not to scare"

Halloween presents a number of settings where things can go wrong. This, in combination with a lot of people behaving badly as part of their Halloween celebration, has created an interesting body of law I call, Halloween Law. One such setting is the haunted house as a traditional Halloween setting and activity. Here are a few things that can happen leading to legal questions that have become immortalized in legal texts:

Negligence in Haunted Houses and Corn Mazes

Haunted Houses are particularly good places to have accidents --- they need to be dark so that patrons cannot see things that are about to jump at them. These scary actors and situations may cause reactions that result in self-injury or unintentional injuries. So injuries can happen to the patrons as well as the actors. 

A negligence case begins with the question of duty.  Does the haunted house owner owe a duty to the patron?  If so, what is that duty?  The patron rightfully expects not to be faced with an unreasonable danger, but they do expect to have a frightening experience.  In fact, patrons are paying to be frightened in a haunted house, which alters the normal duty “not to scare” another.  The court described this “modified duty” on Halloween:

On any other evening, presenting a frightening or threatening visage might be a violation of a general duty not to scare others. But on Halloween at trick-or-treat time, that duty is modified. Our society encourages children to transform themselves into witches, demons, and ghosts, and play a game of threatening neighbors into giving them candy.¹

Thus, the court here, held that haunted houses are typically not unreasonable risks.  So as a general rule, patrons who enter a haunted house assume the risk of things that typically happen in a haunted house, including their own actions when they are frightened; although each state has their own rules. So the haunted house owner would have to present an unreasonable risk to breach his modified duty to the patron.

In Durman (La. App. Ct.), a chainsaw actor ran after a patron of a corn maze (similar to a haunted house setting), who heard the chainsaw and ran, slipped in the mud and was injured. The court held that mud was part of being in a corn maze. The court said, “Accordingly, we find that no duty was owed by the Billingses to Mrs. Durmon in this case to warn or protect her from her reaction to being frightened by “Jason,” an experience she expected to have and for which she paid an additional admission fee.”²  In Mays v. Gretna (La.App., 5th Cir.1996) a patron was injured who ran into a brick wall after being frightened;³ and in Bonanno v. Continental, where a devil frightened patrons their assumption of that risk of being frightened was a complete defense to a negligence case against the haunted houses.⁴  In all three cases, the courts held that these were not unreasonable risks and there was no duty to guard against fright resulting from a haunted house, because after all, that is what patrons paid for.

            In Policeman's Benefit Association, the security guard shoved a patron against the wall, injuring them, which was not a risk the patron had assumed.  The only question was whether the act had been reckless to determine whether the insurance company would defend the guard.⁵  In Powell, a patron claimed they suffered a mental disability as a result of a blow to the head they received in the haunted house.  In Seipp (NC), a patron was injured while attending a haunted house that was owned by the school district, and because the school district had not properly completed the requirements to rent the facility to the organization, the court did not grant its usual sovereign immunity making the school liable for the patron’s injuries.⁶

            The court has held that haunted house establishments do not owe a duty to protect patrons from the traffic after they leave the house.  In Arthur (La.), a patron was injured in traffic after leaving the haunted house and the court held that the haunted house had no duty to patrons after they left the house and so no negligence.⁷  Also, in Galan (La), a patron was injured while leaving the haunted house and the court held there was no breach of duty.⁸

            However, courts have found a duty to assist patrons in various settings in a haunted house. Where a haunted house in Tennessee did not have a firefighter at a slide to assist a patron who was injured on a slide in the haunted house, the court held the haunted house had breached its duty to protect its patrons from unreasonable risks.  The court found negligence.⁹ In Holman (Ill.), a grandma was visiting a Halloween display in the Illinois State Museum with her grandson and the lights were out when she fell over some chairs in the corner of the room.  It was distinguishable from the other cases where there is no duty “not to scare” because here, the haunted house had been unreasonable with the pile of chairs in a corner which presented an unreasonable risk and the haunted house had a duty to protect the patrons from unreasonable risks. The court held the house was negligent and they breached their duty of reasonable care to the grandma.¹⁰

Some states require a contributory negligence formulation where if the patron contributed to the negligence they may have no recovery or they may have a proportionate recover depending on the percentage of the negligence the court attributes to them. Tort law and recovery for negligence is state law which varies from state to state.

Haunted Houses as Attractive Nuisances

There are haunted houses that are created as commercial ventures and then there are haunted houses that are the “real thing”, or so they may appear to be. They may be in disrepair and dangerous, yet be an attraction for the curious intruder wanting a thrill in a haunted house. If the owner has not taken steps to prevent the intruder from the attractiveness of entering this setting, the trespasser may use as a defense that it was an “attractive nuisance” particularly if they are harmed.            

An attractive nuisance is a defense in a trespass in land claim.  An attractive nuisance is an exception to the trespass rule that landowners owe no duty to trespassers except willful and wanton harm.  The elements of attractive nuisance require (1) that a potentially dangerous condition exists on the property; (2) that the landowner created or maintained the potential hazard; (3) that the landowner should have known the condition would attract children; and (4) that the landowner should have known the condition could harm children.¹¹

            In Hayward v. Carraway, the parents under state law were liable for the damage done to an old house by the teenagers ranging in age from 13 to 18.  The defendants contended that the house was an attractive nuisance, as a defense.  The court wrote that “appellants contend the house was in such a state of dilapidation the children were justified in thinking it an abandoned ghost house incapable of being damaged. That the juveniles may have considered the building a ‘ghost house’ or ‘haunted house’ is of no consequence inasmuch as the intention of a party committing vandalism does not affect the right of recovery of the injured party.”¹²

[This is based on an excerpt from my book, Halloween Law: A Spirited Look at the Law School Curriculum available on Amazon at https://www.amazon.com/Halloween-Law-Spirited-School-Curriculum/dp/0983802440

If you would like to watch the video series on the book, you can find it here: https://vimeo.com/ondemand/halloweenlawschool .]

You will never look at a haunted house the same, again. It may even be scarier now!

1. Bouton v. Allstate Ins. Co., 491 So. 2d 56, 59 (La. Ct. App. 1986).

2. Durmon v. Billings, 873 So. 2d 872 (La. Ct. App. 2004).

3. Mays v. Gretna, 668 So.2d 1207, 95-717 (La.App., 5th Cir.1996).

4. Bonanno v. Continental Casualty Co., 285 So.2d 591 (La.App. 4th Cir.1973).

5. Policeman's Benefit Association v. Nautilus Insurance Company, No. M2001–00611–COA–R3–CV, 2002 WL 126311 (Tenn.Ct.App. Feb.1, 2002).

6. Seipp v. Wake County Bd. of Educ, 132 N.C. App. 119, 510 S.E.2d 193 (N.C. Ct. App. 1999).

7. Arthur v. City of DeRidder, 799 So. 2d 589 (La.App. 3^rd Cir.2001).

8. Galan v. Covenant House of New Orleans, 96-1006 (La.App. 5th Cir.5/14/97), 695 So.2d 1007 (5^th Cir.1997).

9. Burton v. Carroll Cnty., 60 S.W.3d 829 (Tenn. Ct. App. 2001).

10. Holman v. Illinois, Not Reported in N.E.2d, 47 Ill.Ct.Cl. 372, 1995 WL 902088 (Ill.Ct.Cl.)

11. See Restatement (Second) of Torts § 339 (Am. Law Inst. 1965).

12. Hayward v. Carraway, 180 So.2d 758 (La.App., 1965).