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No Laughing Matter…Assumption of the Risk Defense Upheld.

ABSTRACT: Injured while running from a scary clown at a haunted attraction? That’s unfortunate, but you assumed the risk.

Plaintiff Munoz attended Fright Fest, a Halloween oriented haunt event, at Six Flags wanting to be scared. While there, a “scary clown” jumped out at her, causing her to flee and ultimately injure herself. In a failed attempt to bring a lawsuit against Six Flags and the “unidentified” clown employee, the Court found that by going to an attraction where fear responses are likely to occur, the person seeking the thrill of fear assumes the risk.

Munoz attended Six Flags’ Fright Fest with her cousin arriving at the park around 8:00 p.m. For three hours, Munoz witnessed and encountered numerous characters in the park who tried to scare and startle her. She also saw the characters interact with guests, causing the guests to scream and run away in fear. While walking towards the Mr. Freeze ride, around 11:00 p.m., a clown jumped out of nowhere in front of Munoz and started chasing a group of guests in the area causing everyone in the area to flee. Munoz also ran from the clown, tripped on a curb and injured herself in the process.

Munoz filed a lawsuit against Six Flags, alleging defendant Doe “dressed as a frightening clown[,] appeared and purposefully scared a crowd of approximately fifteen to twenty people.” She further alleged the defendants “failed to conduct actor activities in a safe manner,” including to “cease chasing guests once a group of guests began stampeding,” failing to warn of or maintain a safe premises free of “dangerous stampedes of people,” and failing to direct or train actors in a manner that kept guests safe.

Following discovery, Six Flags moved for summary judgment arguing an implied primary assumption of the risk barred Munoz from bringing her claim. Six Flags argued it could not be held liable because Munoz’s injury occurred because of the acts she knew about, expected, and personally witnessed while at Fright Fest before and at the time of her injury. Therefore, the risk of being injured while running away from a scary character was inherent to the decision to attend and remain at Fright Fest.

The trial court granted Six Flags’ motion for summary judgment finding Munoz knew about and expected to be scared during her attendance at Fright Fest. The court emphasized that characters at Fright Fest are expected to frighten patrons, and Munoz testified that is what she expected. Further, the record showed Munoz voluntarily exposed herself to the inherent risks she knew before attending the event. Munoz appealed.

On appeal, Munoz argued (1) there was a genuine dispute as to whether she impliedly assumed the risk of participating in the themed event where guests are frightened because the trial court failed to consider the interactions of Munoz with the scary clown, which were not inherent to the activity, and (2) even if she assumed the risk of falling and injuring herself by attending, Six Flags increased or altered the risk when the scary clown chased after the group surrounding Munoz. The Missouri Court of Appeals, Eastern District, disagreed on both fronts.

Under the implied assumption of the risk doctrine, “if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it,” and the defendant is not liable for “injuries stemming from such inherent risks because no duty is owed to those risks.” Inherent risks are “structural or involved in the constitution or essential character” of the activity in question.

“Fright” was the reason Munoz attended Fright Fest and the risk that a Fright Fest scare actor might cause a guest to run and fall was inherent to the event. Munoz was aware of and voluntarily accepted that risk before and during her attendance. And there was insufficient evident to support the plaintiff’s claim that Six Flags or its scare actor was negligent by “chasing” Munoz. She testified that she knew about and expected scare tactics, and even witnessed patrons running from scare actors during the three hours she was in attendance prior to the incident. The Court found “Six Flags cannot take the fright out of Fright Fest,” as fright is inherent to this type of attraction. Therefore, Six Flags owed no duty to prevent the fright which caused Munoz to run.

As to Munoz’s second argument about her being chased, the Court pointed to the record that reflected neither Munoz nor her cousin identified facts supporting being chased. Neither would confirm whether the scare actor was chasing them, nor that the scare actor made any attempt to engage them. But even if there was a chase, the Court found it immaterial. Munoz consented to the risks of being around others who were likely to run, because she witnessed it for three hours prior to her own failed escape attempt.

This case reinforces the deeply rooted “assumption of the risk” defense. It applies not only to haunted attractions, but all attractions that advertise and then do what is expected by those attending or participating in the events. When an inherent risk is known to a patron, plaintiffs cannot later claim negligence on the part of the operator who does what they said they would. Rather, by voluntarily attending, witnessing, and engaging in the risk that caused the injury, a patron has assumed the risk and summary judgment is appropriate.