Halloween Trick, Treat or Tort?

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Dear John,



With Halloween fast approaching, my mind seems to be stuck contemplating questions stemming from haunting visions of future trouble.


What would happen if a teenager decided to trick me instead of asking for a treat and injured himself while sneaking into my house? I ask because someone was lurking outside my house a few nights back. Funnily enough, I honestly think they ran away because they thought the life-size Dracula cutout in the window was my husbands silhouette. But what if hed actually snuck in, saw the Dracula and flinched, slipping to break his arm? Would I be liable? What could I do to protect myself from being sued?


What if a trick-or-treater tripped over something in my front yard? Could they sue me for personal injuries? Would I be responsible for accidents that might happen in my house or in my yard as a Virginia property owner?


Jessica, Fairfax

Jessica,

Your specters abide in the realm of tort liability. Tort in this context means a civil wrong other than breach of contract not a sugary delight.

You must first determine the legal status of the tricking teenager when he visits your home. The teenager or trick-or-treaters can be on your property in the capacity of trespassers, licensees or invitees. The duty you owe them differs according to their status.
Trespassers are those who come on your property without your permission, expressed or implied. To trespassers you owe only the duty to refrain from intentionally injuring them. But there are even exceptions to this distinction.

Licensees are those who enter your property for their own convenience or benefit. To licensees, you owe the duty to warn of hidden defects or dangerous conditions on the property known by you to exist.

Invitees are those who are invited to come onto your land. To invitees, you owe the duty to maintain your property in reasonably safe condition for the visit and to warn of any unsafe conditions that are not open and obvious. The invitation need not be expressed but may be inferred where the visit is for the mutual benefit or advantage of the parties, or where the landowner is to receive a benefit for the visit.

In what category do you believe the law would place the tricking teenager? Certainly he would be a trespasser and, as such, you would owe him no duty to warn him of the auspiciously placed Dracula cut-out.

And what of the trick-or-treaters? Could it be said that a parade of children dressed as werewolves and action heroes flocking to your front door would be a benefit to you? Perhaps spiritually? I wonder what the legal consequence would be were they to egg your house instead of simply smiling for a handout, though. Would that alter their category? Would that make them trespassers and not invitees or licensees? And what of the fact that they are coming to your house, pillow sack in hand, hoping for a handful of candy, offering little to nothing in return? There definitely is a benefit to the trick-or-treater.

I would argue that trick-or-treaters are licensees and that to them you would therefore owe only the duty to warn them of hidden defects or dangers on the property. Perhaps you should put up a Beware of Dracula sign. Happy Halloween.

John Kent Kidwell is an attorney at the law firm Kidwell, Kent&Curran. Readers with questions may write to him at Woodson Square, 9695 C Main St., Fairfax, Va., 22031, Fax him at 703-764-2194, or e-mail him at [email protected]

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