A number of recent personal injury lawsuits — including one in which a teenage girl claims chemicals used in a fog machine caused her to have an asthma attack — may be putting a scare into operators of haunted houses.

According to the Haunted House Association, there are more than 2,000 haunted attractions in the U.S. and more than 300 amusement parks offer some sort of Halloween or haunted house event. Charity groups honor Halloween by staging more than 1,000 haunted attractions.

Assumption of risk usually bars liability for injuries suffered by patrons of haunted houses. In Mays v. Gretna Athletic Boosters, 668 So.2d 1207 (1996), the Louisiana Court of Appeal said a woman assumed the risk of running into a brick wall at a haunted house after being frightened when “someone jumped out and hollered” at her.

But in December, Jessica Launderville sued the operator of the Realm of Terror attraction in Round Lake Beach, Ill., alleging her feet got entangled in rubber mats, causing her to slip and fall, as she was being chased by “an employee with a chainsaw as a scare tactic.”

Kristof's Entertainment Center was negligent in, among other things, “improperly chas[ing] individuals in the haunted house toward the exit,” the complaint said.

In a similar case, an Independence, Mo., woman claims she tripped on “an unmarked step” at the Edge of Hell haunted house in Kansas City as she was walking through “a pitch black hallway with dog creatures on piston-type mechanisms that would physically strike [customers].”

Rhonda Gomez's suit says the step was a “dangerous condition” and Full Moon Productions is liable for “failing to provide adequate lighting” and “allowing mechanical creatures to physically strike customers.” She allegedly suffered injuries including a broken nose, fractured wrist and dislocated elbow.

Being scared by a chainsaw-wielding employee or mechanical creatures is part and parcel of the haunted house experience. As the Mays court noted,

Patrons in a Halloween haunted house are expected to be surprised, startled and scared by the exhibits but 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.

But Launderville and Gomez could still have viable claims if they can show they were injured by dangerous flooring. A haunted house operator, like any business, has a duty to maintain its premises in “a fashion commensurate with ordinary and reasonably care.”

The case of 15-year-old Brittney Holmes, meanwhile, presents the novel issue of whether the operator of The Darkness in St. Louis is liable for failing to warn her of the dangers of chemicals emitted from its fog machine.

Holmes visited the haunted house last Halloween and, according to a complaint filed in April, she was exposed to “various chemical components comprising artificial fog, smoke and scents” that caused her to have an asthma attack so severe it left her in a coma. She has so far incurred $545,000 in medical costs, the suit says.

The owner of The Darkness told Missouri Lawyers Media that the fog from his machine, consisting of “90 percent water and sugar,” is safe and he has posted warnings for people with respiratory ailments on the haunted house's website, on the exterior of the haunted house itself, on a sign near the ticket windows, and on the tickets.

“There's nothing else I could have done to warn people who have asthma,” Larry Kirchner said.

By Matthew Heller
10/29/10