Lawsuits Are Scary at Halloween Too!
“Nothing on Earth is so beautiful as the final haul on Halloween night.”
“There is a child in every one of us who is still a trick-or-treater looking for a brightly lit front porch.”
Nearly every holiday has been the subject of at least a handful of notable lawsuits and Halloween is no exception. Scary costumes, haunted houses, wandering in the dark and taking candy from strangers are perfect ingredients for frightfully bad legal actions.
Especially litigious are those persons who find themselves overly frightened by things that they intended to have frighten them. Such was the case in October of 1988 when Deborah Mays entered a haunted house run by an athletic booster group in Gretna, La. Upon entering the haunted house, a masked character jumped out at Mays and she turned and ran — directly into a cinderblock wall that was covered with black cloth.
X-rays confirmed that Mays had broken her nose and two surgeries ensued. She sued the Gretna Athletic Boosters asking that they be found liable for her injuries. The court rejected her claims and dismissed the case finding that, “the very nature of a Halloween haunted house is to frighten its patrons.” While the court recognized that people are expected to be frightened, it also found that, “the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways.”
Terrifying haunted houses are one thing, but flammable costumes are completely different. Most children’s costumes are made with flame resistant material in an attempt to protect kids from injury and their makers from lawsuits. But what about costumes that are home made?
Susan and Frank Ferlito attended a Halloween party in Michigan in 1988 dressed as Mary and her little lamb (fortunately, Frank Ferlito was the lamb). The lamb costume was made delightfully fluffy by the application of an untold number of Johnson and Johnson cotton balls. While attempting to light a cigarette, Frank Ferlito ignited his cotton balls and was severely burned.
The Ferlito’s sued Johnson and Johnson seeking more than a half million dollars in damages. Amazingly, a civil jury found that Johnson and Johnson was 50 percent liable for the injury. The trial court vacated the judgment of the jury, finding that any person with any common sense knows that cotton balls will burn and that placing a warning on the product would not have prevented the plaintiff from using them to make the costume.
Of the many scary characters synonymous with Halloween is Friday the 13th’s Jason Voorhees. It isn’t surprising, then, that a man dressed as Jason — goalie mask and running chainsaw included — might be found lurking inside a Halloween corn maze. Such was the case in Dixie, Louisiana (apparently, Louisianans are particularly litigious when scared) in 2002.
Perhaps it was the running chainsaw held high above his head, but when Gracie Gail Durmond came across him, she fled in terror, tripped in the muddy field and broke her leg. She filed suit against the operators of the maze, claiming that they were negligent for running the event on such muddy ground.
Of course, Durmond was well aware that the ground was muddy. In fact, she had called ahead to make sure the maze was even open because she was aware that it had been raining for several days. She was also informed that running was prohibited in the maze. The court dismissed the case, finding that the mud was not an unreasonably unsafe condition and that it was open and obvious to Durmond.
Lawsuits arise from issues other than injury, however. Even the simple issue of the marketing of adult Halloween costumes can lead to legal action.
During the presidential debates this year Sesame Street’s Big Bird became a topic of conversation. It has resulted in a spike in demand for Big Bird costumes. One company has attempted to profit off of that by marketing a skimpy, revealing adult-only Big Bird costume.
Just as one would expect, the folks over at the Sesame Street Workshop are none too pleased about the idea. They carefully control the marketing of Bird Bird in various forms and are certainly not happy about the giant avian’s likeness being used for a risqué adult costume.
As a result, lawyers for the Workshop have sent a cease and desist letter to the costume company — Yandy — demanding that they stop selling the costume and remove it from their website. A cease and desist letter is not legal action in and of itself, but rather a communication that threatens legal action if there is no compliance.
If Yandy does not comply (and as of this writing, the costume remains for sale on their website for the low, low price of $55.95 — delivery guaranteed in time for Halloween) then the Children’s Television Workship may sue for violation of copyright. They may also seek damages based on Yandy’s continued sale of the costume after the cease and desist letter was sent.
Lawsuits are one more scary thing than is necessary at Halloween. Be safe while trick or treating and keep yourself out of the legal system on All Hallows’ Eve.
David Hejmanowski is a magistrate and court administrator at the Delaware County Juvenile Court and a former assistant prosecuting attorney.