MONROE v. FRANKLIN FLAGS AMUSEMENT PARK, INC.

Brief in Support of Motion for Summary Judgment

III. Legal Argument

The court should grant summary judgment against the plaintiff on all three counts of her
complaint. Summary judgment is appropriate when there is no genuine dispute of material
fact and the moving party is entitled to judgment as a matter of law. Larson v. Franklin High
Boosters Club, Inc., (Fr. Sup. Ct. 2002). As will be discussed below, the material facts under
each count are not in dispute and Ms. Monroe cannot make out a prima facie case of negligence
on any of the three counts that she raised in her complaint. Therefore, summary judgment is
appropriate on each count.

1. The Park Is Not Liable in Negligence for Ms. Monroe’s Broken Nose, Which Was
Incurred When She Was Frightened and Ran Into a Wall Within Franklin Flag’s Haunted
House Attraction, Because Liability for Negligence Depends on the Circumstances and It Is
Not Negligent to Frighten People Within a Haunted House.

In her first count against Franklin Flags Amusement Park, Ms. Monroe argues that Franklin
Flags negligently caused her broken nose by allowing its employee, Camille Brewster, to dress
as a zombie, hide in the final room of the park’s haunted house attraction, jump out of a hiding
place, and scream at Ms. Monroe, causing her to become so frightened that she ran face first
into a wall. The Franklin Supreme Court has set out the prima facie case for such injuries in
Larson v. Franklin High School Boosters, supra. Larson is a case with facts remarkably similar
to the case at hand: Larson, the plaintiff, became frightened when a person dressed as a vampire
in the defendant’s haunted house came at him suddenly. Larson reeled back, tripped on his own
feet, and broke his arm and dislocated his shoulder as a result.

In Larson’s negligence case against the operators of the haunted house, the Court explained
that the starting point is the general tort duty to act reasonably and not put others in a position
of risk. Larson, citing Dozer v. Swift (Fr. Ct. App. 1994). In Dozer, the defendant, a coworker
of the plaintiff, knew that the plaintiff was afraid of spiders and dropped a number of live but
harmless spiders over the wall of the plaintiff’s cubicle. The plaintiff became frightened, fell
backward from his desk, and sustained a serious head injury. The Court held that the defen-
dant’s conduct (intentionally scaring his co-worker) breached the general duty of care.

However, in Larson, the court held that the inquiry does not end at the general duty of care. Once
the general duty is established, it next must be determined: (i) what duty is imposed under the
particular circumstances, (ii) whether there was a breach of that duty that resulted in injury or
loss, and (iii) whether the risk that resulted in the injury was encompassed within the scope of
protection extended by imposition of that duty. The Court went on to explain that “[p]atrons at
an event which is designed to be frightening are expected to be surprised, startled, and scared
by the exhibits; the operator does not have a duty to guard against patrons reacting in bizarre,
frightened, or unpredictable ways.” The Court went on to explain that “by voluntarily entering a

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self-described “House of Horrors” on Halloween, [the plaintiff] accepted the rules of the game.
Hence, [the plaintiff’s] claim—that the club was negligent in its very act of admitting him to
the ‘House of Horrors’ because the establishment of the exhibit itself, with features designed to
frighten patrons, breached the club’s duty to act reasonably—must fail.”

Ms. Monroe’s case is very much like Mr. Larson’s case and nothing like the plaintiff’s case in
Dozer. In her deposition, Ms. Monroe stated that she went to Franklin Flags on Halloween and
entered the Haunted House expecting to be frightened—indeed, she stated that that was what
was fun about the holiday. Having come to the park to be frightened and having injured herself
because she became frightened and ran into a wall, Ms. Monroe, like Mr. Larson, cannot argue
that the park was negligent in admitting her to the attraction that she knowingly sought. The
park has no liability for her acting in “bizarre, frightened, or unpredictable ways.” The fact
that this was the only room in which a person jumped out to scare patrons should do nothing to
change the results here. Ms. Monroe came to be frightened, and she was frightened. The park
was not negligent merely because it met her expectations.

However, Larson established that the park’s duty does not end here. A business proprietor or
operator of an amusement attraction has a duty to protect patrons —who are invitees—from
unreasonably dangerous conditions. This requires the operators to use reasonable care in
inspecting and maintaining the premises and equipment to ensure that they are reasonably safe
for their intended purpose. Moreover, this duty includes a duty to provide adequate personnel
and supervision for patrons entering and exiting the establishment. In Larson it was alleged
that the “House of Horrors” employees were not adequately instructed on what to do if a patron
became injured. That is not so in our case.

The transcript of the deposition of Mike Matson, the park’s general manager, indicated that all
staff members, including those playing the parts in the last room of the house, were instructed
to help patrons who might get into trouble. Moreover, a doctor was on duty in case medical
attention should be necessary. The transcript of the deposition of Camille Brewster, the young
woman playing the part of the zombie who frightened Ms. Monroe, also shows that she received
this instruction, that she was told to call the doctor in case of a medical emergency, and that
she approached Ms. Monroe to ask if she was okay and to offer assistance, but Ms. Monroe and
her husband fled before Ms. Brewster could do anything. Ms. Monroe’s deposition transcript
partially corroborates these facts, as Ms. Monroe said that the zombie approached her after she
was injured, but she could not tell what the zombie was saying because she just wanted to get
away from the frightening situation. Thus, the park did have adequate personnel to handle the
emergency here. As stated above, the park cannot be held liable because Ms. Monroe was too
frightened to accept the help offered.

Ms. Monroe might argue that Costello v. Shadowland Amusements, Inc. (Fr. Sup. Ct. 2007)
should be controlling here. In that case, an amusement park was found liable to a plaintiff who
was injured in a haunted house after she was frightened by holograms of ghoulish apparitions
shown on a wall. There, as in our case, the room was dimly lit. However, in Costello, the injury
arose not because the plaintiff acted in a frightened way and ran into a wall or tripped over her
own feet, but rather because the park had placed a bench in the middle of the dimly lit room,

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and the plaintiff tripped over the bench while she was backing away. In other words, the injury
was caused by the park putting a stumbling block in the middle of a dimly lit room rather than
from the plaintiff’s own frightened reaction. In our case, by contrast, Ms. Monroe ran into a
wall in a room in which the exits were lighted. She should not have been surprised that there
were walls elsewhere in the room, as all rooms have walls. Therefore, the park did not breach
its duty of care in any way with respect to Ms. Monroe’s broken nose and summary judgment
should be granted on this count.

2. The Park Is Not Liable in Negligence for Ms. Monroe’s Sprained Ankle in
the Mock Graveyard, Because She Was Aware of the Muddy Ground and No Reasonably
Prudent Person Would Incur Injury in Such Circumstances.

In the second count of Ms. Monroe’s complaint, she alleges that Franklin Flags negligently
caused her sprained ankle by maintaining a muddy path in the mock graveyard as the exit to the
haunted house attraction. The park’s basic duties here are the same as set out above regarding
Ms. Monroe’s first count of negligence. However, in Parker v. Muir, (Fr. Sup. Ct. 2005), the
Court further refined the duties owed by an owner with respect to a dangerous condition. That
case would be controlling here. In Parker, the Court explained that the owner of property
is liable for a dangerous condition on the property only upon a showing that owner knew or
should have known of the dangerous condition, that the damage could have been prevented by
the exercise of reasonable care, and that the owner failed to exercise such reasonable care. But
the court also explained that not all dangerous conditions are unreasonably dangerous. In deter-
mining whether a condition is unreasonably dangerous, the past accident history of the condi-
tion in question and the degree to which the danger may be observed by potential victims are
factors to be taken into consideration. “[T]he condition must be of such a nature as to constitute
a danger that would reasonably be expected to cause injury to a prudent person using ordinary
care.”

In Parker, the Court held that the owner of a corn maze was not liable to a plaintiff who tripped
over rocks in the maze and injured herself. In that case, the plaintiff had been to the corn maze
in the past and had actually warned others who were at the maze with her to use care because
of the rocks. The court found that a reasonable person should not be surprised in encountering
rocks on a dirt corn maze path under the circumstances, and that no reasonable person using
ordinary care would injure herself in these circumstances. Moreover, the Court noted that the
fact that there was no record of any other person being injured on the path strongly supports
this conclusion.

Ms. Monroe will argue that maintaining a muddy graveyard path was unreasonably dangerous,
given that the rest of the paths in the park were paved. However, the park had a reason to
leave the path unpaved—the park’s general manager said it was for verisimilitude— realism,
as real graveyard paths are not paved. Therefore, it was not unreasonable to leave the mock
graveyard path unpaved. In addition, Ms. Monroe said in her deposition that the path was lit
and that she knew it had been raining constantly for three days. A reasonably prudent person
would expect that an unpaved path would be muddy and slippery after a rainstorm. Under these
circumstances, as in Parker, a reasonable person using ordinary care would not slip and fall

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because the condition of the path was readily apparent and thus the path was not unreasonably
dangerous. The safety record of the park bears this out, as Ms. Brewster’s deposition indicates
that Ms. Monroe’s incident was the only incident at the park last Halloween.

Neither is Ms. Monroe’s case here like that of the plaintiff in Costello, supra—Franklin Flags
did not place a stumbling block in the dimly lit graveyard or otherwise create a “dangerous
condition”; the path simply was wet and muddy from rain.

Ms. Monroe’s only possible argument was that there were not adequate personnel in the
graveyard to assist her. However, given the fact that she refused help from Ms. Brewster (in
the haunted house) and another park employee dressed as a chainsaw killer was stationed just
outside the gate of the graveyard, it cannot be said that the failure to have personnel within the
graveyard contributed to Ms. Monroe’s injury in any way.

3. The Park Is Not Liable in Negligence for Ms. Monroe’s Broken Wrist, Even
Though This Injury Occurred Outside the Haunted House Attraction, Because There
Is a General Expectation of Being Accosted and Frightened by People Playing Roles on
Halloween.

In the third count of Ms. Monroe’s complaint, she alleges that Franklin Flags negligently caused
her broken wrist by stationing a person outside the gate of the haunted house attraction dressed
as a chainsaw killer to frighten people as they exited the attraction. The same negligence rules
that were discussed above would apply here as well.

In her deposition, Ms. Monroe testified that at this point she thought she had put the frightening
experience behind her and that she and her husband were so surprised by this last scare that he
let go of her and she slipped and fractured her wrist. While it is true that there were no other
role players outside the haunted house attraction to frighten people within the park, the park
nevertheless did not breach its duty here because of the proximity of the chainsaw killer to the
haunted house attraction—he was stationed just outside the gate to give patrons one last scare
from the attraction they had just exited—an attraction the main purpose of which, a purpose
which the Monroes sought out, was to frighten. As indicated above regarding count 1, the fact
that the park fulfilled the Monroes’ expectations and frightened them cannot be a basis for
liability. Moreover, even though the chainsaw killer character was outside the haunted house
proper, in Larson, supra, the Franklin Supreme Court stated that while in general it is a breach
of duty to intentionally frighten people, this is not so on Halloween: “being accosted by a
supposed ‘vampire’ in the middle of a shopping mall on a normal weekday in July might indeed
be a violation of the general duty. But in this setting [an amusement park], on Halloween,
the circumstances are different.” In fact, Ms. Monroe said in her deposition that she and her
husband “really enjoyed [Halloween]—you know, seeing people dressed up in costumes and
having fun trick-or-treating and trying to scare people and stuff like that” (emphasis added).
Clearly, Ms.Monroe understood that unexpected scares are part of Halloween generally and are
not confined to haunted houses. Furthermore, unlike the situation in Dozer, where the plaintiff
was known to suffer from arachnophobia, Franklin Flags had no reason to suspect that Ms.
Monroe had any special frailties.

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Thus, it can be argued that regardless of where the chainsaw killer was stationed, because the
setting was an amusement park on Halloween, it was not negligent for him to try to scare the
Monroes—they should have been expecting it, especially since, as Ms. Monroe stated in her
deposition, she came to the park for the fun of Halloween, expecting to be frightened.

Conclusion: Since Ms. Monroe will be unable to make out even a prima facie case for negli-
gence on any of her claims and there being no dispute as to the facts, the defendant respectfully
requests that the Court grant defendant’s motion for summary judgment on all three of Ms.
Monroe’s claims.

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 MONROE v. FRANKLIN FLAGS AMUSEMENT PARK, INC.

SELF-SCORING CHECKLIST FOR MPT

Summary Judgment Standard and Conclusion

o o o The answer somewhere sets out the standard for granting a motion for summary
judgment (summary judgment is appropriate when there is no genuine dispute of
material fact and the moving party is entitled to judgment as a matter of law), (ii)
cites Larson as the source, and (iii) suggests that the court should grant the motion
on all three claims because the material facts under each count are not in dispute and
Ms. Monroe cannot make out a prima facie case of negligence on any of the three
counts that she raised in her complaint (one point for each enumerated statement)

Ms. Monroe’s Broken Nose

o The answer includes a heading that is a full sentence summarizing why the park is
not liable, such as: The park is not liable in negligence for the broken nose because
liability depends on the circumstances and it is not negligent to intentionally try to
scare someone in a haunted house attraction/or because the park’s duty was to have
sufficient personnel to handle emergencies and the park met this duty by having Ms.
Brewster on hand and a doctor on call

o The answer includes a statement of Ms. Monroe’s claim, including supporting facts
(e.g., Ms. Monroe argues that Franklin Flags negligently caused her broken nose by
allowing its employee, Camille Brewster, to dress as a zombie, hide in the final room
of the park’s haunted house attraction, jump out of a hiding place, and scream at Ms.
Monroe, causing her to become so frightened that she ran face first into a wall)

General Duty under Larson and Dozer

o The answer discusses the specific facts of Larson (e.g., notes that the plaintiff
became frightened when a person dressed as a vampire in the defendant’s haunted
house came at plaintiff suddenly and he reeled back, tripped on his own feet, and
broke his arm and dislocated his shoulder as a result)

o o (i) The answer notes that the general tort duty is set out in Dozer, (ii) states the
o o general duty (to act reasonably and not put others in a position of risk), (iii) discusses
the specific facts of Dozer (a coworker of the plaintiff knew that the plaintiff was
afraid of spiders and dropped a number of live but harmless spiders over the wall of
the plaintiff’s cubicle, the plaintiff became frightened, fell backward from his desk,
and sustained a serious head injury), and (iv) indicates that the defendant’s conduct
of intentionally scaring his co- worker breached the general duty of care (one point
for each enumerated statement)

o The answer explains that under Larson, once the general duty is established, it next
must be determined: (i) what duty is imposed under the particular circumstances,
(ii) whether there was a breach of that duty that resulted in injury or loss, and (iii)

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 whether the risk that resulted in the injury was encompassed within the scope of
protection extended by imposition of that duty

o o o The answer explains that in Larson (i) the Court explained that patrons at an event
designed to be frightening are expected to be surprised, startled, and scared by the
exhibits; (ii) the operator does not have a duty to guard against patrons reacting in
bizarre, frightened, or unpredictable ways; and (iii) by voluntarily entering a haunted
house on Halloween, the plaintiff accepted the rules of the game and cannot success-
fully claim that the operator was negligent in admitting him to the haunted house

o o o (i) The answer should note that Ms. Monroe’s case is very much like Mr. Larson’s
and nothing like the plaintiff’s case in Dozer because in her deposition, Ms. Monroe
stated that she went to Franklin Flags on Halloween and entered the Haunted House
expecting to be frightened; and (ii) therefore, Ms. Monroe, like Mr. Larson, cannot
argue that the park was negligent in admitting her to the attraction that she knowingly
sought. (iii) The fact that this was the only room in which a person jumped out to
scare patrons should do nothing to change the results here—Ms. Monroe came to be
frightened, and she was frightened (one point for each enumerated statement)

Duty owed to invitees under Larson

o o o Larson also imposes another duty: (i) a business proprietor or operator of an amuse-
ment attraction has a duty to protect patrons—who are invitees—from unreasonably
dangerous conditions. (ii) This duty requires the operators to use reasonable care
in inspecting and maintaining the premises and equipment to ensure that they are
reasonably safe for their intended purpose. (iii) The duty also includes a duty to provide
adequate personnel and supervision for patrons entering and exiting the establishment

o o (i) Mike Matson’s (the park’s general manager’s) deposition indicated that all staff
members were instructed to help patrons who might get into trouble; and (ii) a doctor
was on duty in case medical attention should be necessary

o o (i) Camille Brewster’s (the zombie who frightened Ms. Monroe) deposition also
shows that she received the instruction to render aid, that she was told to call the
doctor in case of a medical emergency, and that she approached Ms. Monroe to ask if
she was okay and to offer assistance, but (ii) Ms. Monroe and her husband fled before
Ms. Brewster could do anything (one point for each enumerated statement)

o Ms. Monroe’s deposition transcript partially corroborates these facts, as Ms. Monroe
said that the zombie approached her after she was injured, but she could not tell what
the zombie was saying because she just wanted to get away from the frightening
situation

o The park did have adequate personnel to handle the emergency here

Distinguishing Costello
o o (i) The answer indicates that Ms. Monroe might argue that Costello should be controlling.

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o o (ii) It should discuss the facts (an amusement park was found liable to a plaintiff who
was injured in a haunted house after she was frightened by holograms of ghoulish
apparitions shown on a wall). (iii) It should note the factual differences: In Costello,
the injury arose not because the plaintiff acted in a frightened way and ran into a wall
despite lighted exit signs, but rather because the park had placed a bench in the middle
of the dimly lit room, and the plaintiff tripped over the bench while she was backing
away. (iv) Ms. Monroe should not have been surprised that there were walls elsewhere
in the room, as all rooms have walls (one point for each enumerated statement)

Conclusion
o The park did not breach its duty of care in any way with respect to Ms. Monroe’s
broken nose and summary judgment should be granted on the first claim

Ms. Monroe’s Sprained Ankle

o The answer includes a heading that is a full sentence summarizing why the park is
not liable, such as: The Park Is Not Liable in Negligence for Ms. Monroe’s Sprained
Ankle in the Mock Graveyard, Because She Was Aware of the Muddy Ground and
No Reasonably Prudent Person Would Incur Injury in Such Circumstances

o The answer includes a statement of Ms. Monroe’s second claim, including supporting
facts (e.g., Ms. Monroe argues that Franklin Flags negligently caused her sprained
ankle by maintaining a muddy path in the mock graveyard as the exit to the haunted
house attraction

o The answer indicates that the park’s basic duties here are the same as set out above
regarding Ms. Monroe’s first count of negligence

Discussion of Parker
o o (i) The answer includes an indication that Parker provided that the owner of property
o o is liable for a dangerous condition on the property only upon a showing that owner
knew or should have known of the dangerous condition, that the damage could
have been prevented by the exercise of reasonable care, and that the owner failed to
exercise such reasonable care; (ii) that not all dangerous conditions are unreasonably
dangerous; (iii) that in determining whether a condition is unreasonably dangerous,
the past accident history of the condition in question and the degree to which the
danger may be observed by potential victims are factors to be taken into consider-
ation. (iv) “[T]he condition must be of such a nature as to constitute a danger that
would reasonably be expected to cause injury to a prudent person using ordinary
care” (one point for each enumerated statement)

o o o (i) The answer includes a discussion of the facts of Parker (owner of a corn maze
was not liable to a plaintiff who tripped over rocks in the maze and injured herself
when the plaintiff had been to the corn maze in the past and had actually warned
others who were at the maze with her to use care because of the rocks). (ii) The court
found that a reasonable person should not be surprised in encountering rocks on a
dirt corn maze path under the circumstances, and that no reasonable person using

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 ordinary care would injure herself in these circumstances. (iii) The Court also noted
that the fact that there was no record of any other person being injured on the path
strongly supports this conclusion (one point for each enumerated statement)

o o o (i) Ms. Monroe will argue that maintaining a muddy graveyard path was unreason-
ably dangerous, given that the rest of the paths in the park were paved, but (ii) the
park had a reason to leave the path unpaved—realism—so it was not unreasonable
to leave the mock graveyard path unpaved. (iii) Moreover, in her deposition Ms.
Monroe said the path was lit and that she knew it had been raining constantly for
three days; a reasonably prudent person would expect that an unpaved path would be
muddy and slippery after a rainstorm (one point for each enumerated statement)

Conclusion
o o (i) Under these circumstances, as in Parker, a reasonable person using ordinary care
would not slip and fall because the condition of the path was readily apparent and
thus the path was not unreasonably dangerous. (ii) The safety record of the park
bears this out, as Ms. Brewster’s deposition indicates that Ms. Monroe’s incident was
the only incident at the park last Halloween

Distinguishing Costello
o Ms. Monroe’s case here is not like that of the plaintiff in Costello, supra—Franklin
Flags did not place a stumbling block in the dimly lit graveyard or otherwise create a
“dangerous condition”; the path simply was wet and muddy from rain

Adequacy of personnel
o o (i) Ms. Monroe’s only possible argument was that there were not adequate personnel
in the graveyard to assist her. (ii) However, given the fact that she refused help
from Ms. Brewster (in the haunted house) and another park employee dressed as a
chainsaw killer was stationed just outside the gate of the graveyard, it cannot be said
that the failure to have personnel within the graveyard contributed to Ms. Monroe’s
injury in any way (one point for each enumerated statement)

Ms. Monroe’s Broken Wrist

o The answer includes a heading that is a full sentence summarizing why the park is
not liable, such as: The Park Is Not Liable in Negligence for Ms. Monroe’s Broken
Wrist Because There Is a General Expectation of Being Accosted and Frightened by
People Playing Roles on Halloween

o o The answer includes a statement of Ms. Monroe’s third claim, including supporting
facts (e.g., (i) Ms. Monroe alleges that Franklin Flags negligently caused her broken
wrist by stationing a person outside the gate of the haunted house attraction dressed
as a chainsaw killer to frighten people as they exited the attraction; and (ii) she testi-
fied that at this point she thought she had put the frightening experience behind her
and that she and her husband were so surprised by this last scare that he let go of her
and she slipped and fractured her wrist (one point for each enumerated statement)

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o The answer indicates that the same negligence rules that were discussed above would
apply here as well

o o The answer attempts to articulate a reason why the park is not liable: (i) While the
o o chainsaw killer character was outside of the attraction gate, he was stationed just
outside the gate and the patrons should have expected one last scare from the attrac-
tion they had just exited, since the main purpose of the attractions was to scare.
As indicated above regarding count 1, the fact that the park fulfilled the Monroes’
expectations and frightened them cannot be a basis for liability. (ii) Even though the
chainsaw killer character was outside the haunted house proper, in Larson, supra, the
Franklin Supreme Court stated that while in general it is a breach of duty to inten-
tionally frighten people, this is not so on Halloween: “being accosted by a supposed
‘vampire’ in the middle of a shopping mall on a normal weekday in July might
indeed be a violation of the general duty. But in this setting [an amusement park], on
Halloween, the circumstances are different.” (iii) Ms. Monroe said in her deposition
that she and her husband “really enjoyed [Halloween]—you know, seeing people
dressed up in costumes and having fun trick-or-treating and trying to scare people and
stuff like that” (emphasis added), so Ms. Monroe understood that unexpected scares
are part of Halloween generally and are not confined to haunted houses. (iv) Unlike
the situation in Dozer, where the plaintiff was known to suffer from arachnophobia,
Franklin Flags had no reason to suspect that Ms. Monroe had any special frailties

o It can be argued that regardless of where the chainsaw killer was stationed, because
the setting was an amusement park on Halloween, it was not negligent for him to
try to scare the Monroes—they should have been expecting it, especially since, as
Ms. Monroe stated in her deposition, she came to the park for the fun of Halloween,
expecting to be frightened

Prayer for Relief

o Since Ms. Monroe will be unable to make out even a prima facie case for negligence
on any of her claims and there being no dispute as to the facts, the defendant respect-
fully requests that the Court grant defendant’s motion for summary judgment on all
three of Ms. Monroe’s claims

PASSING SCALE

Raw Score Range Proficiency Level

1-12 Significantly below passing
13-16 Below passing
17-21 Slightly below passing
22-29 Passing
30-37 Slightly above passing
38+ Significantly above passing

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