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?
I’m sorry that the teenager got injured. However, if you go to a Halloween haunted house, and find it too scary, you leave. You can’t buy tickets for an event that was advertised as scary and then sue them for…being scary. I completely understand how she might have thought she could do it, and then realized she wasn’t having fun. That’s not the park’s fault. They explicitly stated this wasn’t for young children.
I recall going to a Haunted House exactly once. I can apparently shriek like a banshee. I was so entertaining to the employees that I had an entourage. When I made it out, I sagged against the wall, gasping for air and laughing at how silly I was…when a hand reached out underneath the wall, grabbed my ankle, and got me again! The lesson that I learned was that I don’t particularly like Haunted Houses. That’s not the venue’s fault.
The girl and her mother contributed more than 50% of the fault. No one struck her. Jumping out at people or sneaking up behind them is part of the job of a Haunted House or Spooktacular employee.
This case seems mostly like a shake-down to me.
so you don’t think it’s the ambulance chaser they ran into
“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.”
***************************
I don’t think anyone assumes the risk they will be injured by an involuntary reaction like startling. Fear can be anticipated but a startle and it’s consequences cannot. How could anyone knowingly assume the risk that a defendant would produce an injury by invoking an involuntary human reaction over which the Plaintiff, by definition, has no control but which the defendant knows or should know will occur and, most importantly, can choose the timing and location of the reaction? If I leap from a hidden location while you are crossing footbridge causing you to fall, have you really assumed that risk by purchasing your ticket and reading the advertisements? That would be a bridge too far in protecting negligent defendants. Verdict for Plaintiff.
When they show up at court some people not related in any way to the defendants should show up at the door and scare them with hollow weenies. Make em run. Video it. If they are not frightened then show that to the jury. Phony balonies need to be thrown overboard onto ice pads in the arctic.
If I were to go to a park on Halloween called “Halloween Haunt”, I would expect it to be spooky or scary. I would hope that, in this case, the necklaces would have been available at the gate. I can’t imagine that there would be no signage mentioning them….or was there and it was an additional fee which the patron didn’t want to pay?
Have your lawyer ask a simple “what are you prepared to pay to avoid litigation”? They’re ready for that discussion. Injuries, even minor ones, are a bigger factor.
Sandra:
It’s their insurance company you’re talking to and they don’t care about litigation costs. They just pass them on. The defendant rarely is financially on the hook for damages just premiums which are spread over time. The litigation threat is real but a small factor.
Unless there are facts I am not aware of, this lawsuit should be thrown out.