Scott Griffin attended The Haunted Trail, an outdoor haunted attraction at Balboa Park in San Diego operated by The Haunted Hotel, Inc., in October 2011. Near the end of the attraction, a costumed actor wielding a gas-powered chainsaw — with the chain removed, so it could not cut — executed what the attraction called the "Carrie effect": a fake exit that lures patrons to relax, followed by a final burst of terror as the chainsaw actor comes roaring after them. Griffin fled down the access road at the end of the trail, fell, and injured his wrist. He sued The Haunted Hotel for negligence and assault.
The trial court granted summary judgment for The Haunted Hotel. Griffin appealed, raising four arguments. The Court of Appeal, Fourth Appellate District, Division One, rejected each one and affirmed.
Duty is a question of law, not a jury question. Griffin argued that whether the operator owed him a duty should have gone to the jury. The court disagreed: duty is a legal question resolved by the court, not a factual question for jurors. Because the haunted trail is an activity to which primary assumption of risk applies, the court — not a jury — determines the scope of the operator's duty. That duty is limited to not unreasonably increasing the risks inherent in the activity.
The type of fear the chainsaw produced is irrelevant. Griffin argued that his fear was different in kind from ordinary haunt fright — the chainsaw looked real, sounded real, and smelled real, producing a level of terror beyond what an "ordinary" scare might. The court was unpersuaded. Under primary assumption of risk, what matters is whether the activity and its inherent risks were known and voluntarily assumed — not the subjective intensity of the plaintiff's reaction. The purpose of a haunted attraction is to produce fear. Whether that fear is mild or extreme does not change the legal analysis.
The access road was within the attraction's boundaries. Griffin contended that he was injured on an access road outside the attraction proper, and that the operator's duty of care therefore revived once he stepped off the haunt's designated path. The court rejected the factual premise. The record showed that The Haunted Hotel controlled the access road, had used it as part of the attraction for years, and that the chainsaw finale was specifically designed to chase patrons down it. The road was part of the haunt experience, not a neutral public space beyond it.
Saying "stop" does not revoke primary assumption of risk. Griffin argued that he had verbally revoked his consent during the chase, and that the operator was therefore liable for continuing the scare after he objected. The court found this argument misconceived. Primary assumption of risk does not rest on implied consent that can be withdrawn moment-to-moment; it rests on the nature of the activity and the risks the participant accepted by choosing to engage in it. A patron cannot opt out of an inherent risk mid-experience by saying "stop."
No unreasonable increase in risk. Even under primary assumption of risk, an operator remains liable if it unreasonably increases the risks of the activity. The court found no evidence of that here. Over approximately 14 years and more than 250,000 patrons, only 10 people had fallen on the access road — and none had been injured before Griffin. The surface was even and well-lit. The operator's knowledge of 10 prior falls, without injury, did not establish a "high probability of serious harm" sufficient to support a recklessness theory.
Griffin v. The Haunted Hotel, Inc., California Court of Appeal, Fourth Appellate District, Division One, No. D066715. Opinion filed October 23, 2015; certified for publication November 20, 2015.