Lawsuits Are Scary at Halloween Too!

“Noth­ing on Earth is so beau­ti­ful as the final haul on Hal­loween night.”

Steve Almond

“There is a child in every one of us who is still a trick-or-treater look­ing for a brightly lit front porch.”

Robert Brault

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.

Posted by Dave Hejmanowski on Oct 25 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.