Another holiday season is upon us and that means it’s time for a HOLIDAY HYPOTHETICAL!

Hypothetical: 

The plaintiff and his friends went to a haunted house for a night of fun and fright. Ghostly Estates was rated the scariest house in the Midwest, but the plaintiff was sure he could handle it. Fun was had by all until they went into the basement. Ghosts, goblins and ghouls were everywhere, reaching for the plaintiff. He tried to get away and then a man in a hockey goalie mask came at him with a butcher knife. The plaintiff ran but there was no way to get back upstairs. The only way out of the basement was up a short flight of stairs at the end of the hall that led to the outside. To get there, he had to get past the masked man.

The plaintiff closed his eyes and ran past the masked man, screaming like a baby the entire way. He made it past the masked man without being stabbed but then tripped on the stairs that led outside. The plaintiff fell and broke his wrist. He sued Ghostly Estates and the unknown masked man for negligence. 

Is Ghostly Estates liable for this incident?

Analysis:

Assume this incident took place in Cook County, Illinois.  Now let’s look at the case from both the plaintiff’s and defendant’s perspective and see what each would argue.

Plaintiff’s Perspective

Even a plaintiff’s attorney in Chicago would admit that being chased by a masked man is an open and obvious condition in a haunted house. It was advertised and the plaintiff went there to get scared. However, the plaintiff will argue the deliberate encounter exception applies, creating negligence, because the plaintiff had only one exit option and Ghostly Estates knew people would be running away from the masked man as they exited. The plaintiff would also argue the distraction exception applies because the plaintiff was distracted by the masked man and he was running for his life when he tripped.

Defense Perspective

The open and obvious doctrine clearly applies but the deliberate encounter and distraction exceptions do not. The stairs and exit were clearly marked. The plaintiff was deliberately intended to encounter the masked man but that is what he paid for and that was his intent when he entered the haunted house. The same goes from a distraction exception and the marked stairs/exit were sufficient. From a policy perspective, the court cannot allow plaintiffs to sue haunted houses because they got scared and ran like a baby.

Answer:   

Unfortunately, I’m not sure how this one would play out in Cook County. We all know it should be summary judgment for the defendant but technically the plaintiff was distracted by the defendant and required to deliberately encounter the masked man and be blocked from the exit by the masked man. A well written liability waiver on each ticket would be the best way to protect the haunted house.

Happy Halloween!

Photo thanks to www.boneyardhaunt.com