“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, Louisiana. 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 Ms. 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, Mr. 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, Mr. 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% 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, Ms. 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 Ms. Durmond.
At least two lawsuits have ensued over circumstances in which homeowners have mocked their neighbors with fake tombstones that contained messages that were derogatory and clearly aimed at adjoining landowner. A 2010 Florida case involved a message that made fun of a neighbor for being single and referenced her date or birth with a fake death date.
Five years earlier, in Bloomingdale, Illinois, a dispute about an RV parked on the street, led to several Halloween tombstones that mocked the neighbors who made the complaint about it being parked there. The Bloomingdale police got involved, and the tombstone creators quite literally made a federal case out of it – defending their free speech rights in a federal court. Not only did the federal court uphold their right to put up the tombstones, but it also went after the lawyers in the case, stating, “Lawsuits like this one cast the legal profession in a bad light and contribute to the impression that Americans are an over-lawyered and excessively litigious people.”
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 judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.
