Halloween is around the corner, which means it is time to set up spooky decorations and visit haunted houses where trained “scarers” will chase tweens with chainsaws. When you buy a ticket to a haunted house you know you are going to be subject to jump scares, screams, and threats of violence from actors. The chainsaw may be real, but there is no chain attached and the actor has been instructed to never touch a customer. While there are some extreme haunted attractions like McKamey Manor in Tennessee where guests must sign a liability waiver acknowledging that they are unable to leave and will be subjected to torture (including having bones broken, teeth removed, and being drugged), most strip mall haunted houses are just good, old-fashioned fun. The customers know there is no real danger and assume the risk of being frightened. In most cases, there would be no basis for a customer to sue the haunted house for negligent or intentional infliction of emotional distress. Most haunted houses are more concerned with their guests attacking their employers or customers slipping and falling than being sued for emotional distress.
However, jump scares are not limited to haunted houses and may happen any time. There are YouTube channels and television shows dedicated to pranking unwitting individuals with scary clowns, haunted elevators, and other things which you do not expect to run into when waiting at the bus stop or shopping in a store. Candid Camera was on television for 74 years with light-hearted pranks suitable for family viewing. However, some pranksters take things too far or pick the wrong person to scare, resulting in injuries.
Arizona law recognizes the torts of negligent infliction of emotional distress and intentional infliction of emotional distress. In a negligence case, the plaintiff must prove: (1) the defendant was negligent; (2) defendant’s negligence created an unreasonable risk of bodily harm to the plaintiff; (3) defendant’s negligence was a cause of emotional distress to the plaintiff; (4) the plaintiff suffered physical injury or illness due to the emotional distress; and (5) plaintiff’s damages. See Revised Arizona Jury Instructions (Civil), 7th Ed., Negligence 9. This claim involves situations where the plaintiff experienced an event which threatened their personal security. Arizona does not recognize run of the mill claims which involve transitory distress like weeping or insomnia. Instead, Arizona requires the plaintiff to prove that their emotional distress was manifested in some physical way, like grinding of teeth, bedwetting, fainting, a heart attack, or a miscarriage. See Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979). This is the only way to prevent the courthouses from being filled with lawsuits filed by people who became temporarily upset or aggravated because someone accidentally caused them to fear for their safety.
Many automobile accident cases involve claims of negligent infliction of emotional distress. The claim may be based on a collision with the plaintiff’s vehicle or even a near miss situation where there was no physical contact, but the plaintiff was injured nonetheless. They may also include cases where the plaintiff witnesses bodily harm to a family member or someone closely akin thereto. Witnessing an injury to a coworker or pet is insufficient to warrant the bystander’s inclusion as a recognized claimant. In the “witnessing injury to another” cases the plaintiff must not only have a close personal relationship with the injured person, but they must also have been in the “zone of danger” of the injury producing event such that there was an unreasonable risk of bodily harm to them. As with other negligent infliction of emotional distress claims, there must still be a physical manifestation of the emotional distress to pursue the claim.
Intentional infliction of emotional distress is a much more serious allegation. In order to prevail on this claim, the plaintiff must prove: (1) defendant’s conduct was extreme and outrageous; (2) defendant’s conduct was either intentional or reckless; and (3) defendant’s conduct caused plaintiff to suffer severe emotional distress. Conduct is “extreme and outrageous” if an average member of the community would regard the conduct as atrocious, intolerable in a civilized community, and beyond all possible bounds of decency. See Revised Arizona Jury Instructions (Civil), 7th Ed., Intentional Torts 16. The “extreme and outrageous” element is the highest hurdle to overcome for most plaintiffs. Some factors the court will consider are defendant’s knowledge that the plaintiff is peculiarly susceptible to emotional distress, by reason of some physical or mental condition or peculiarity, or whether the defendant abused a position of authority with the plaintiff. There is no master list of what conduct is considered extreme and outrageous, so each case must be decided on the facts of that case. For example, if an unsuspecting trick or treater wandered into the McKamey Manor and was kidnapped, subjected to torture, and had teeth pulled out without anesthesia, the court would likely find the conduct to be extreme and outrageous. This is why McKamey Manor requires their customers to sign lengthy waivers which were hopefully drafted by very good lawyers. Even the best waiver would not protect them from a lawsuit in Arizona, though, as the Arizona Supreme Court has held that a jury must decide whether the assumption of risk defense applies, even if the participant has signed a contract with an express assumption of risk clause. Phelps v. Firebird Raceway, Inc., 210 Ariz. 403, 404, 111 P.3d 1003, 1004 (2005). Limitation of liability clauses, on the other hand, may be enforced. See 1800 Ocotillo, Ltd. Liab. Co. v. WLB Grp., Inc., 219 Ariz. 200, 205-06, 196 P.3d 222, 227-28 (2008).
Thomas Rubin & Kelley PC routinely defends cases involving allegations of negligent and intentional infliction of emotional distress. Please contact Michael Kelley at mkelley@trkfirm.com or Brian Rubin at brubin@trkfirm.com if you need assistance with your scary Arizona cases. Thankfully, we do not get spooked easily. Happy Halloween!