Halloween Risk Management for Amusement Parks: Curbing the Scary Specter of Legal Liability

Indeed, whether its Universal’s Halloween Horror Nights, Busch’s Howl-O-Scream or even just your local FEC event, operators of all sizes are tapping into the lucrative Halloween market. Often this involves elaborate haunted houses, mystery mazes, and crazed costume characters roaming through the darkened corners of an amusement park. While the vast majority of events go off without a hitch, the unique nature of most Halloween programs—that is to say, they occur at night, often in dimly-lit venues—can also raise the specter of potential legal problems.

So, to help make your Halloween plans a little less scary (at least in legal terms), we contacted two leading industry attorneys to get their advice on how to create a ghoulishly good time while avoiding the lawsuit hobgoblins. 

The first person we spoke with was Boyd Jensen, legal counsel for several Southern California amusement venues and a past president of the International Amusement & Leisure Defense Association (IALDA.org). 

According to Jensen, “Often, land owners believe that, since the [Halloween] event obviously contains more aggressive and personally threatening entertainment devices, their duty is less. The idea is that if you are offering a more strenuous and aggressive attraction that includes hidden and cloaked entertainment devices at a well-known holiday that celebrates these very devices and ‘monsters and their victims,’ people will expect them and should assume the risk of these devices.”

Whatever logic that line of thinking might possess, Jensen makes an important point: It doesn’t mix well with the law.

Say “No” to Reasonable Monsters

There’s a line—often related to physical contact—that shouldn’t be crossed. As Jensen explains, “At touch football games, people accept extra risks by participation with more strenuous and aggressive activity. But that is simply not so at Halloween parties. In fact because they are knowingly hidden or knowingly cloaked, the land owner needs to have extra guidelines and safety procedures to demonstrate they are safe like any other entertainment device. There is no ‘reasonable monster’ standard.”

Which means that a careful balance must be struck between generating the desired fright and keeping the actual event under control. Guest safety must be placed ahead of any other factor. 

Now, this shouldn’t be confused with the idea of “overlawyering.”  That occurs when a legal counsel tries to eliminate all risks and, in doing so, creates a risk-averse bubble (and a dumbed-down event) that almost totally suppresses creativity. Obviously, a result like this could completely undercut a park’s business. Creativity and excitement should be allowed to flourish, but within an environment of apparent chaos as opposed to actual chaos.

Say “Yes” to Risk Management

That begs the question of how: How does an amusement facility keep a Halloween event genuine without incurring unnecessary legal risk?  For help in answering it, we turned to another past president of IALDA, Michael Amaro, a long-time industry attorney based in California. According to Amaro, at Halloween events, “many incidents are caused by a guest reacting to fear, and hence losing balance or tripping over a nearby guest or object. For these types of incidents, disclaimers and good signage are a good risk management tool to follow.”

However, not all incidents occur when scared visitors fail to take appropriate care. Some result from more technical problems such as problematic elevations or lights. 

Amaro explains, “When it comes to elevation changes, some ‘plaintiff’ experts rely on ASTM 1637 which establishes a maximum change of elevation between walking surfaces to ½ inch.” (ASTM International {astm.org} is the Society for Testing and Materials. A number of ASTM committees are relevant to the attractions industry and have participation from industry members.) “First, it is important to remember that said ASTM standard is not a mandatory requirement,” continues Amaro.  “However, many safety experts use the standard to support their opinions re negligence. Second, it can be argued that such standard is limited to accessible routes and exit systems from buildings, and not the inside of buildings or temporary structures themselves.” 

Amaro also provided good advice on the issue of lighting at Halloween events. “The darkness inside the haunt is an integral part of the event,” he notes. “If it were bright inside, patrons would not have the same experience. Although artful plaintiff attorneys always claim that the UBC [Uniform Building Code] requires a minimum amount of foot candles of illumination inside the haunt, I have never seen a court make that requirement at any location other than at entrance/exits. As it relates to exits, it is a good idea to make sure that the same are all marked, per the requirements of the local fire department and other electrical codes.”

As you can see, Halloween events present some unique issues that many better-lit and less frightening attractions might not. But a facility can successfully pull them off. Indeed, almost every major North American amusement operator from Cedar Fair to Six Flags and most others in between has developed some form of haunted evening event – and the holiday is catching on in parts of Europe as well.

The key is to remember that, while you can generate real fear, the guest should never be in real danger. After all, you don’t want to find your facility on the receiving end of a spine-tingling lawsuit. 

Happy (Legally Safe) Haunting this Halloween season…

See also:

Giant Pumpkins, Halloween Costumes and Magic: Tivoli 2008

Fright Dome Prepares to Scare at Circus Circus Las Vegas 

Theme Park Trends in Central Florida and the Game of "What-If?"

This entry was posted in Amusement Parks and tagged , , , by Chad Emerson. Bookmark the permalink.

About Chad Emerson

Chad D. Emerson is an Associate Professor of Law at Faulkner University’s Jones School of Law.

He is a frequent lecturer, author, and consultant in the area of amusement and hospitality law. Chad is also the author of: The Continuing Showdown Over Who Should Regulate Amusement Attraction Safety: A Critical Analysis of Why Fixed-Site Amusement Attraction Safety Should Remain State-Governed published by the Seton Hall Legislative Journal.

He is the Former Editor and Administrator of the amusement industry’s leading legal and regulatory website—ThemeLaw at themelaw.blogspot.com and a Contributing Writer for a variety of leisure and special events industry magazines, including a regular column entitled The Large Park Report for Tourist Attractions & Parks Magazine.

Chad D. Emerson can be contacted by telephone at (334) 386-7536, or by e-mail at cemerson@faulkner.edu

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