For anyone planning to terrorize unsuspecting trick-or-treaters, you may want to ask yourself: Is it worth a potential lawsuit?
Every year, KIRO Radio’s John Curley pulls the old pumpkin-head scare tactic: crouching under a table covered with a black sheet and sticking his head through a hole in a pumpkin. He sets a candy bowl nearby with a note that reads “Take one. Remember there are other goblins just behind you.”
“Kids come along and as soon as they take more than one, I rise up like a phoenix and I scream at them through the pumpkin head,” Curley said.
The last few years, the scare has worked ghoulishly, with terrified kids scrambling away unharmed. His new home, however, has three concrete steps near where he planned to set up the table.
But in an age when a lawsuit could be lurking around every corner, Curley is curious if he is leaving himself open to legal action.
Curley called his brother, Chuck Curley, a Philadelphia attorney, about whether he’d be liable in a lawsuit if one of the kids fell.
“I would say you are,” Chuck said.
Chuck noted that a trick-or-treater would likely be considered an invited guest, rather than a trespasser, because the lights are on and people are encouraged to come to the house. When that determination has occurred, Chuck said, the homeowner has a duty of reasonable care.
“Then the question becomes, what is the normal expected reaction of someone when you put your head through a pumpkin and scream at them?” Chuck asked. “I would think running away, soiling your pants — that would be another thing you would expect to happen. And I think you’d be potentially responsible for the outcome.”
Curley asked whether kids should expect to be frightened on Halloween anytime they come to a door. Chuck acknowledged that there could be a defense that a child should assume some of the risk, but wasn’t convinced of Curley’s innocence.
“You’ll hear that theory when someone gets hit by a baseball at a baseball game — that they kind of knew that was gonna happen,” Chuck said. “But I don’t think it rises to that level.”
Safe scaring recently popped up in Kirkland, after the city shut down a haunted maze set up in a homeowner’s yard for the past 15 years. The city said the structure wasn’t safe, violating municipal codes. Included in the city’s findings, among other things, is the maze was not structurally stable and covered with a flammable tarp. An anonymous donation for a rental tent ultimately saved the neighborhood tradition.
Back to his own potential predicament, Curley asked if changing the sign near the candy bowl to “Take one or else” might make a difference.
Chuck: Now you’ve committed an intentional tort. Do you plan on “Or else” meaning to grab them by the throat or something?
John: Or else, meaning, all of the sudden the table is going to rise up and I’m gonna scream at them and they’re gonna defecate … Your honor.
Chuck: I think you’d better check your home owner’s policy before you start the hi-jinks this year.