Too old to trick-or-treat, too cool to stay at home with their parents and wanting some Halloween excitement, high school students (presumably 18 years old) Rosemary and Buffy head for Hill House, a new haunted house where the actors can touch the guests, separate them from their group and even force them down “secret” passages. Shelling out $20 apiece, Rosemary and Buffy sign a one-page form without reading it and step in to a terrifying experience – but not as they expected. Accosted by all manner of ghouls, Rosemary is forced down a secret passage where a “vampire” gropes her. Chasing Buffy through the darkness, a chainsaw-wielding maniac runs Buffy into a wall. They emerge from Hill House crying and screaming. Rosemary is distressed; Buffy later discovers that her nose is broken. They want to sue Hill House and its employees, but what about that one-page form (release) they signed?
Rosemary being groped? Rosemary’s threatened lawsuit should frighten Hill House’s owners. She could sue for assault – any offensive or provocative physical contact, even if it does not result in bodily injury. While Hill House did not authorize (and perhaps forbade) its actors to grope its guest, it may yet be liable if the employee’s assault arose directly from his employment. Hill House did direct its actors to scare its guests by touching them.
Buffy running into a wall? Buffy’s threatened lawsuit is not nearly as scary for Hill House. Even without a release, Buffy’s claim of her injury would have little bite. Most states recognize that both parties to the injury may share some responsibility for what happened. A Louisiana appeals court in an eerily similar case held:
The very nature of a Halloween haunted house is to frighten its patrons. In order to get the proper effect, haunted houses are dark and contain scary and/or shocking exhibits. 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.
The release. What about the one-page form that presumably contained a standard release and waiver of any liability? It’s not a silver bullet, but it might help Hill House. As to Rosemary being groped, in Texas, releases of intentional torts (such as assault) are generally against public policy and void, because they incentivize wrongful conduct. The release probably also contained a written consent to actors touching the guests – which might be a defense to an assault claim. Yet, Rosemary’s likely response is that she consented to being pushed or grabbed on the shoulders, not sexually assaulted or groped.
As to Buffy, she expected to be frightened. There was nothing outlandishly out of place that caused her to fall (to be gross negligence) nor did anyone touch or push her into a wall (to be an intentional tort). Hill House’s prospective release of negligence claims is almost certainly enforceable under Texas law because it satisfies two requirements: (1) the release is from the consequences of Rosemary’s own negligence as expressed in specific terms within the document; and (2) the release most likely satisfies the requirements of being conspicuous – capitalizing language, using contrasting type, font, or color.
Courts have held that a haunted house’s duty does not extend to protecting its guests in a dark room from running into a wall. A California court reached the same result in a case in which a guest fell while being chased by a chainsaw-wielding actor. The court held that “[b]eing chased within the physical confines of [the haunted house] . . . is a fundamental and inherent risk of this amusement” that the guest had voluntarily paid to experience.
Tilting the Scales in Your Favor
While you shouldn’t have to expect that every time you sign “one of those forms” you will lose, you should expect that you are being required to sign it for a reason. Setting aside Rosemary’s unwanted contact/assault for a moment, at the very least, the form is intended to (i) put you on notice that there is something that the Haunted House owner expects might cause some injury or claim and (ii) he expects you (and by signing the form you expressly agree) to be aware of your surroundings. Having said that, it is unlikely – if not impossible – that any form will forgive (release) an intentional tort of groping/assault. While Hill House will be hard-pressed to eliminate its liability and that of its employees, you should, still, be acutely aware of your surroundings. And, if you choose to read the release and it attempts to permit “touching” by the Hill House employees, you might want to be a little SPOOKED.