Every year we discuss new tort actions tied to Halloween as part of our “Spooky Torts” tradition. A new case was just filed by Shannon Sacco and her daughter over their visit to the Dorney Park and Wildwater Kingdom in Pennsylvania. The park, owned by Cedar Fair, included costumed employees as part of a Halloween attraction. Sacco claims that the costumes were too scary and caused trauma worth more than $150,000.
The Allentown Morning Call reported the lawsuit in Lehigh County Court.
The lawsuit describes how “M.S.” went with friends to the amusement park and was immediately approached by costumed characters. She said that she told them that she did not want to be scared and back away. Little further on into the park however a costumed employee alleged ran up behind her and shouted loudly. The startled girl fell forward and suffered what were serious but unspecified injuries. She alleges ongoing medical issues and inability to return to fully functioning activities. The lawsuit also alleges that the park failed to inform Sacco or her daughter that they could buy a glow-in-the-dark “No Boo” necklace to ward off costumes employees.
The obvious issue beyond the alleged negligence of the Park is the plaintiffs’ own conduct. Pennsylvania is a comparative negligence state so contributory negligence by the plaintiffs would not be a bar to recovery. See Pennsylvania General Assembly Statute §7102. However, it is a modified comparative negligence state so they must show that they are 50 percent or less at fault. If they are found 51 percent at fault, they are barred entirely from recovery. Even if they can recover, their damages are reduced by the percentage of their own fault in going to a park during a Halloween-themed event.
Their counsel clearly should see the problem with the availability of the “No Boo” neckless. Visitors would seem to assume the risk both by entering during this period and not purchasing the necklaces. Yet, if the Park did not notify patrons or notified them after they ran into the first line of ghouls, they can claim at a minimum that there was no assumption of that risk. However, the Park can say that the decorations, advertisements, and theme were sufficient warning for all those who entered.
Notably, the current website includes a warning that “On select weekends in the fall, Dorney Park transforms into Halloween Haunt featuring haunted mazes, scare zones, rides and monsters prowling the park. What you can see will scare you. What you can’t see will Haunt you. Fear is waiting for you. (The Halloween Haunt event is not recommended for children ages 13 or younger.)”
What do you think?