Johnson Fistel, LLP Wishes Clients and Friends A Happy and Safe Halloween!

Beware of the Haunted House!

In Mays v. Gretna Athletic Boosters, Inc., defendant operated a haunted house to raise money for local athletic programs.  Plaintiff attended the haunted house at night, and as haunted houses tend to be, it was dark inside.  Plaintiff testified that someone jumped out and hollered at her, scaring plaintiff who began to run.  Unfortunately for plaintiff, she ran into a covered cinder block wall injuring her nose, which ultimately required multiple surgeries.  Plaintiff’s lawsuit followed.  The trial court ultimately entered judgment on behalf of the defendant, and plaintiff appealed.  In affirming the judgment on appeal, the appellate court held that “[t]he 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.”

A Frightening Purchase

“Who you gonna call?”  Not the Ghostbusters, but a lawyer of course (assuming you want to rescind your recent haunted real estate transaction)!  This is precisely what the plaintiff-buyer did in the case of Stambovsky v. Ackley where the plaintiff discovered that the house he recently contracted to purchase was widely rumored to be possessed by poltergeists.  In fact, defendant-seller reported as much to both the Readers’ Digest and in the local press, and the house was one of five included in a walking tour of the town due to its (rumored) ghostly guests.  But when it came time to sell her haunt, defendant remained silent as its ghostly squatters and failed to inform plaintiff (who was not from the area) of the apparent apparitions.  The appellate court, in modifying the dismissal of the trial court to reinstate the rescission count, held that “defendant seller deliberately fostered the public belief that her home was possessed. Having undertaken to inform the public-at-large, to whom she has no legal relationship, about the supernatural occurrences on her property, she may be said to owe no less a duty to her contract vendee. . . Where, as here, the seller not only takes unfair advantage of the buyer’s ignorance but has created and perpetuated a condition about which he is unlikely to even inquire, enforcement of the contract (in whole or in part) is offensive to the court’s sense of equity. Application of the remedy of rescission, within the bounds of the narrow exception to the doctrine of caveat emptor set forth herein, is entirely appropriate to relieve the unwitting purchaser from the consequences of a most unnatural bargain.”

Trick or Treat.  And a Fire Extinguisher, Please!

And last, but not least, we have Ferlito et al. v. Johnson & Johnson Products, Inc.  This case involved a husband and wife who attended a Halloween party dressed as Mary and her little lamb.  To pull off the lamb look for Mr. Ferlito, Mrs. Ferlito used cotton batting manufactured by Johnson & Johnson.  Mr. Ferlito was covered from head to toes with the cotton batting, except for his hands and face which were blackened with Halloween paint to complete the ensemble.  Unfortunately, Mr. Ferlito was a smoker, and the cotton that made up much of his costume, highly flammable.  When he lit a cigarette, the flame from the lighter ignited the highly flammable cotton on his costume leaving Mr. Ferlito with burns on a third of his body.  Mr. and Mrs. Ferlito sued Johnson & Johnson for the injuries they suffered and were awarded $625,000 in damages following trial.  However, Johnson & Johnson was successful in getting the award vacated and a new trial partially because Mr. and Mrs. Ferlito admitted knowing that cotton would burn if exposed to an open flame from, say, a lighter.  The court reasoned that this, as well (among other things) that Mr. Ferlito admitted that he ignored the warnings on cigarette packaging, meant that any warnings on the cotton packaging (which plaintiffs argued should have been on such packaging but was not) would have been superfluous.

Have a fun and safe Halloween!