Sharing my life and love of cross stitch. Thoughts about this and that.

Monday, October 31, 2011

Witches and Goblins and Ghosts; OH MY, The Potential Liability!

I haven't participated at all in Halloween activities in at least 15 years, despite the fact I did a couple of designs recently. 1) My DD, my costumed TrickRTreeterGreeter, moved out 21 years ago; 2) There have never been many children come round - last year only a couple were out and about; 3 & 4) A whine:  I'm allergic to chocolate and can't eat sugar so having mostly full bags of leftovers around is just too tempting to resist; and 5) Premises liability issues - I have cracks in my driveway that even I trip over on occasion - read ## below if you are interested or for your horrified amusement. [Being a lawyer often takes the fun out of otherwise entertaining activities.] Sad to say, but I park my car at an angle to block the drive, don't turn on my porch light and keep the inside dark as possible. Or I find somewhere else to be for a while. Of course, had I young children or a grandchild, I would get back into the ghoulish swing of things - elsewhere.

OTOH, My DD goes beyond the ghostly pale when it comes to Halloween. She has had
the occasional a costume party with decorated house, and for years has set up increasingly more elaborate spooky displays in her front yard. This year they added dead groom sitting next to dead bride in coffin on the porch, created more spider webs to drape from eaves and trees, upgraded the graves scattered throughout the yard, and likely added more scary noises/music, etc. The last 2 years she and her DH were Zombie Wilma and Fred. This year it's Mr. & Mrs. Frankenstein - full make-up, of course. The resultant increased vehicular traffic has encouraged other neighbors to join in.

## Promised really spooky legal stuff[Appears to me that when it comes to Halloween, the level of  duty and responsibility owed to Trick-or-Treaters falls somewhere between the highest and this slightly
lesser level. We call this, appropriately, a "grey area."]  A person (that's them) who enters the premises (your yard and/or abode) with the landowner's (that's you) express or implied permission (you decorated your house/yard, turned on your porch light, sent out an invitation, didn't stop a crasher at the door, etc.) for his or her own purposes (to acquire candy, free booze, etc.) rather than the landowner's benefit (unless you are deliberately luring them there a la Hanzel and Gretl or Hannibal Lecter), such as a social guest (the fairy, the pirate, the sexy French maid, et al), is called a licensee. An owner or occupier of land (you) has a duty to warn a licensee (them) of a dangerous condition that creates an unreasonable risk of harm (they might hurt themselves) if it is known (or should  have been known) to the owner or occupier (you again) and not likely to be discovered (seen, spotted, knew in advance about) by the licensee (them again). (One assumes this means you must need bull horn specific warnings from the porch before they step in your yard or put up brightly lit fluorescent yellow or orange signs in both pictographs and text, or include a Caveat, in bold at least 10 point typeface, in your invitation.) There is no duty to inspect for defects or to fix known defects. (That's good news, but I wouldn't bet my life savings on it, and you aren't completely off the hook since you can still get sued, which costs you $$, even if you win ...) The owner or occupier (ah ... yes, still  you) does have a duty to exercise reasonable care in the conduct of active operations (encouraging said fairy, pirate, sexy French maid, et al to come into your yard and up to the door and perhaps inside for a party, etc) to protect a licensee (yes, still them)  [whom you] know is on the property. (You don't have to go out looking - but I wouldn't depend on that actually "knew" defense working for Halloween when that "should have known" is hanging out there.) HOWEVER, (and this is for real, well so is the above but this adds another aged witchy wrinkle), an even higher duty of discovery and notice of hazards and care is due to children who can't fully recognize nor appreciate a possible a hazard or dangerous situation, and then there are those DWI Dram Shop laws that can sometimes be extended to hold the individual supplying the booze liable. And for the record: NO, my DD doesn't listen to me either.

Nonetheless, I sincerely wish those of you who do enjoy getting into costume and decorating in black, orange and purple, a wonderful Bubble, Bubble Toil & Trouble Day!

Here's a FUN and generic "Trick-or-Treat  Liability and Indemnification Agreement" to possibly make sure the hand and mouth you put the candy in doesn't come back to bite you. Imagine the screams of horror and the jagged tooth rictus on your teen and adult visitors' faces when you won't let them snatch at the goodies or through your door until and unless they sign it - in advance. Hey, Halloween might be still be fun after all!

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