Rev'd Professor Helen Hall, NLS https://www.ntu.ac.uk/staff-profiles/law/helen-hall
Being pursued by a masked figure brandishing a chainsaw might not be everybody’s cup of tea, but increasing numbers of people in the UK are signing up for experiences like this, especially in the midst of the Spooky Season. Much of the appeal lies in the thrill of being scared, but what happens if things get out of hand, and someone gets injured? Running around in the dark is, but its very nature, a dangerous activity, and if panic is added into the mix, the risk of accidents sky-rockets.
In the USA, Halloween Horror Houses are a fondly regarded (if potentially hazardous) tradition, and over the years have given rise to a steady stream of claims in tort. Interestingly, for the most courts have been unsympathetic to individuals bringing such actions.
For example, in Mays v Gretna Athletic Boosters Inc, a ten year old girl panicked in a haunted house, ran in an effort to escape and hurtled face first into a brick wall. The court found that:
“the operator does not have a duty to guard against patrons reacting in bizarre, frightened and unpredictable ways. Operators are duty bound to protect patrons only from unreasonably dangerous conditions, not from every conceivable danger.”
It would be impossible to offer this kind of experience without some risk, and the court rejected the idea of making the defendant liable if such risks materialised.
Similar reasoning was applied in Bonanno v Continental Casualty Company when an eighty-four year old plaintiff sued after falling in the “devil’s den” room in a haunted house. The plaintiff claimed that the accident was caused by the movement of the crowd, whereas the defendant argued that she had slipped in an attempt to flee from a mechanical devil. The court’s conclusion was that the question was immaterial, because some bumping and shoving was an inevitable part of visiting the attraction. Judge Gulotta ruled that the case was directly analogous to that of Scott v Fair Grounds Corporation, in which it had been held that jostling from a crowd was an inherent aspect of attending a horse-race, and the organisers were therefore not liable for failing to prevent this ordinary risk.
The prevailing judicial attitude in the USA is that participants consent to the chance of injury from both moving people and dim lighting, as well as their own erratic behaviour when shocked or alarmed. In Galan v Covenant House New Orleans, a plaintiff thought that the experience was over, and panicked at a final “jump scare” suffering injury in the process.
The same conclusion was reached by the California Court of Appeal in the 2015 in Griffin v Haunted Hotel Inc, which also concerned a plaintiff injured when reacting to a sting in the tail surprise, when they thought that the game had ended. Nares J (with whom Benke, acting PJ and Macdonald J agreed) found that:
“Being chased within the physical confines of The Haunted Trail by a chainsaw carrying maniac is a fundamental part and inherent risk of this amusement. Griffin voluntarily paid money to experience it. “It is not the function of tort law to police such conduct.”
Furthermore:
“this case does not involve the cultural experience of Halloween, i.e., pumpkin carving, trick or treating with young children, or even bobbing for apples. It involves an adult who pays money to experience extreme fright, and receives exactly what he paid for.”
What the reaction be the same on this side of the Atlantic? It is possible that British courts would be less robust in their promotion of personal liberty and responsibility, and more inclined to assess the reasonableness of the risks created, but such an equation would be very fact specific. It also potentially relates to public policy considerations, and the cultural value placed on Halloween horror experiences. They are a deeply rooted tradition in the US, and judges have been concerned about this being undermined by a flood of litigation and rising insurance costs.
In the United Kingdom this particular form of scary celebration is not a longstanding part of the culture, and it is not clear whether it would be accorded the same level or protection. Individuals taking part in sport are treated as accepting the risk of injury that is integral to the pursuit in question (although not jeopardy above and beyond). However, the social value of sport is widely accepted, and the rules of games, or at least good practice within the sector, tend to be quite well established. Courts therefore have some guidance available as to what is reasonable for a football player to do, or a canoeing instructor to allow a novice to attempt. It is less clear how the benefits and risk of a Halloween terror experience would be weighed in the balance.
There is little case law as yet, but it seems likely that a distinction would be drawn between accidental and deliberate injury at the very least. Individuals might be permitted and expected to assume some risk of tripping and falling, as in the States. However, whether injuries purposely caused, and amounting to actual bodily harm would be tolerated is another matter. A small number of deliberately extreme experiences with this dimension of physical interaction between employees and customers are operating in England, and these may well fall foul of the criminal law. It is highly doubtful that consent would be operative, leaving open the possibility of prosecution for those inflicting the damage, especially if an aggrieved customer later complained to the police. While the processes for establishing criminal and tortious liability are distinct, such a conviction would make defending a civil claim almost impossible. It is difficult to argue that an activity is socially beneficial and should be permitted whilst it is attracting criminal sanction.
Of course, the majority of Halloween experiences do not involve any possibility of deliberate injury, and actors involved are expressly forbidden to make physical contact with participants. Nevertheless, many people celebrating Halloween might still prefer the safer options of consuming sweets, carving pumpkins/swede, and watching films.
Further Reading:
Mays v Athletic Booster Inc 668 So.2d 1207 (1996)
Bonanno v Continental Casualty Company 285 So.2d 591 (1973)
Scott v Fair Grounds Corporation 112 So.2d 763 (Orl., La.App.1959)
Galan v Covenant House New Orleans no 96. CA 1006 (1997)
Griffin v Haunted Hotel Inc Do 66715 (2015)
Comentários