Halloween night 2013 is now history, at least in this part of the world. Having seen the traditions “here” (in various parts of Europe) and “there” (in WI and NY, US), I might suggest a clear difference in approaches and “ambitions”. Nevertheless, globalization evens some of the differences out, as small “gangs” of young witches and devils are approaching neighbors in Geneva and Lausanne, making the latter get involved in search for sweets, nuts, fruits and candies, if any, in their apartments; as the companies and schools, in promoting diversity and enriching their “social” (or “entertainment”) programs, incorporate Halloween elements in their agendas; or as friends gather together, having found a new, creative reason to party.
Dwelling of some awareness and spread of the Halloween traditions in Europe, this post, reflective in its nature, is aimed to unveil a side of the development, which is, probably, a bit less known – the legal aspects of Halloween celebrations. Without denying that, due to the differences in legal systems and approaches adopted in North America (providing the main background for this short “report”) and Europe, some of the phenomena discussed might seem to be “foreign” to our “local” background, they are, at minimum, curious and, at times, funny.
To start with, the article of Daniel B. Moar, Case Law from the Crypt. The Law of Halloween, published in the New York State Bar Association Journal in October 2011 (Vol. 83, No. 8), available here, might serve as a perfect overview of the Halloween legal issues, seen via the prism of the case law. Indeed they are many. Haunted houses, tombs evidencing the “departures” of still living victims, dangerous costumes would by no means exhaust the list.
Contested statistics suggests seeing Halloween as a period of outburst to excessive criminal activity, caused by at least several factors:
- Presence of [often unsupervised] young children around (which increases the risk of their involvement in the traffic accidents and growing range of violent crimes committed against them);
- Special “festive” mood and uncontrolled alcohol consumption, arguably, raising overall criminality rates
For some examples/ feedback on Halloween Crimes, check, inter alia, the Chilling Crimes blog’s collection. Besides descriptions of the facts the link, at times, refers to the other evidence, such as a 911-phone call of the 17-year-old murderer reporting the death of his mother and sister. Another recent example of the same could be found here.
To ensure additional security for the minors browsing the streets (as well as to maintain patience of their parents), several US states restrict mobility of some categories of minor sex offenders on the Halloween night – a ban subject to many discussions and unconstitutionality allegations. This development is, inter alia, elaborated on by Benjamin Snodgrass in The Specter of Sex Offenders on Halloween: Unmasking Cultural, Constitutional, and Criminological Concerns, 71 Ohio St. L.J. 417, 433 (2010), available here.
Additional prohibitions, for instance, forbidding the participants of festivities to hide their faces behind the masks, might also be at stake. The law might go even further, making an attempt to regulate paranormal activities like, for instance, in Massachusetts.
Rich or cute private Halloween displays serve as a fertile background for the property crimes, such as larceny – something that the picture below depicts.
The tradition of wearing costumes might as well simplify an unauthorized entry (break-in) into private premises – burglary. For instance, in one of the cases the male, dressed up as a firefighter, managed, under the false pretenses, to streamline his way into the apartment in order to harass and rape the owner and commit robbery (see here).
Not surprisingly, Halloween celebrations do also contribute to the tort law development. The nature of the event clearly welcomes numerous strict liability (in particular, product liability) issues in, dealing with the quality of treats distributed and, often, costumes. The Halloween story of Ferlito couple, blaming Johnson & Johnson for serious burns, resulting from the cotton costume set on fire, which the husband had sustained, is among the most famous episodes along this line (see here).
Trespass and battery, both – inter alia, due to egg-throwing aimed at property or person (see here), private nuisance (caused by loud/ late partying) and defamation (via costumed personalization) could also “materialize”.
Nevertheless, Halloween negligence is, probably the most interesting development. The courts seem to have created a Halloween-specific approach to shaping the duty and defenses in such cases. For instance, the Louisiana court in Bouton v. Allstate Ins. Co., 491 So. 2d 56, 59 (La. Ct. App. 1986).explained that: on any other evening, presenting a frightening or threatening visage might be a violation of a general duty not to scare others. But on Halloween at trick-or-treat time, that duty is modified. Our society encourages children to transform themselves into witches, demons, and ghosts, and play a game of threatening neighbors into giving them candy.
Along the same line, numerous claims, dealing with the physical injuries and emotional distress suffered by the attendees of the haunted houses, were dismissed in reliance on the assumption of risk, unless unforeseeable factors and defects were directly causing harm (See Moar’s Case Law from the Crypt above). With haunted property now in fashion (http://booking.com/haunted/), this logic might develop and spread in future.
The contract dilemmas, impacted by Halloween, range from casual (and hardly enforceable in court, yet funny), arrangements between parents and children, creating the rules for the “outing” (http://decatur.patch.com/groups/susan-eppleys-blog/p/tween-halloween-contract) or, alternatively, establishing the “candy price” for costume preparation and/ or assistance, to be paid by kids to parents subsequently to the event, to more “structured” issues, such as disclosure obligations of the seller / caveat emptor duties of the buyer and resulting fraud in contract formation scenario, as in Stambovsky v. Ackley, 169 AD 2d 254 – NY: Appellate Div., 1st Dept. 1991, dealing with the sale of the haunter house to the unaware buyer (http://scholar.google.com/scholar_case?case=3290684836490834623&hl=en&as_sdt=2&as_vis=1&oi=scholarr and http://lawprofessors.typepad.com/contractsprof_blog/2005/11/stambovsky_v_ac.html).
Halloween employment law and collective bargaining
Not surprisingly, a number of cases have addressed employment law issues, related to Halloween. Recently, the court considered whether a hospital violated state labor law by ordering union nurses to remove the black Halloween t-shirts, which. depicted a skeleton with the words “Skeleton Crew” on the front and complaints about staffing levels being “cut to the bone” on the back (Massachusetts Nurses Ass’n v. Commonwealth Emp’t Relations Bd., 77 Mass. App. Ct. 128 (Mass. App. Ct. 2010). Another interesting development, also related to the unionized environment, could be traced in Michigan, where the collective bargaining agreement in one of the counties forbids teacher evaluations during the Halloween day (https://www.mackinac.org/17879).
Some good workplace Halloween practices, clearly drafted “in the shadow of the law”, could be learnt from Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz, who, apparently, is not a big fan of the holiday (http://www.ohioemployerlawblog.com/2013/10/how-to-avoid-turning-your-costume-party.html#.UnN_HmQaep0).
Halloween and IP
A special recipe of Halloween cookies, kept in secret, yet, used in his own business by the employee who has left the company, was recently featured in non-compete/ trade secret dispute. Another hot Halloween issue is [potentially] that of copyright in costumes designs, later copied via similar creations.
Halloween and public safety/ consumer protection
An interesting case related to Halloween – related public safety concerns originates from the place somewhat geographically closer to Switzerland than the US – the Russian Federation. Apparently, fearing that the spectators might harm themselves in repeating the shown, the court banned the Halloween video demonstrating the way to fake slashed wrists using a dulled razor, cotton wool and fake blood (http://en.ria.ru/russia/20130507/181009020.html). The video itself (presumably, since the ban is territorial and does not reach outside of Russia) could be found here.
Halloween and business ethics
A big ethical dilemma has arisen after Buffalo mortgage foreclosure firm decided to adopt the “homeless” theme for the Halloween corporate party. The event became public due to the information leak through the former employee and lead to multiple discussions and a public apology (http://www.huffingtonpost.com/2011/11/02/foreclosure-crisis-mocking-law-firm-halloween-party_n_1072178.html)
Halloween and diversity
Halloween celebrations are expected to respect tolerance and promote diversity, with discrimination being condemned, inter alia, via the law (http://sandiego.adl.org/news/adl-deeply-distressed-by-serra-high-school-coaches-inclusion-of-black-face-in-halloween-costume/ and http://america.aljazeera.com/articles/2013/10/30/why-halloween-costumesarenojokeforsome.html).
It might be also relevant to note that, despite the allegations to the contrary, Halloween was characterized as social rather than religious event in Guyer v. School Board of Alchua County 634 So.2d 806 [90 Ed.Law Rep. ] (Fla. App. 1994), rev’w denied,641 So.2d 1345 (Fla. 1994), cert. denied, 513 U.S. 1044, 115 S.Ct. 638, 130 L.Ed.2d 544 (1994),
Halloween and Free Speech
A curious case with no less puzzling outcome was considered by the US circuit court (Purtell v. Mason, http://caselaw.findlaw.com/us-7th-circuit/1197679.html). The court found a Halloween cemetery – type decoration, erected in the private garden, with most of the tombs clearly referring to unflavored neighbors, to be a lawful free speech expression.
Finally, the readers seeking to get a more comprehensive coverage of the topic might be interested in checking the HALLOWEEN LAW book, authored by Texas Tech University law professor Victoria Sutton, – a comprehensive source, analyzing the relevant issues in much more detail (for the details on the book itself and its reviews, see http://www.halloweenlaw.com/, http://setexasrecord.com/arguments/276124-legally-speaking-halloween-lawyer-style, http://lubbockonline.com/education/2013-10-30/tech-professor-writes-academically-about-halloween#.UnNRUmQaep0).
Dr. Leonila Guglya, BSL Professor