Friday, March 17, 2023
This isn't exactly news, but it's news to me. Oklahoma City University 1L Zachary Acosta alerted me to the existence of an attraction in Tennessee known as McKamey Manor, reputed to be the most extreme haunted house in the world. Zachary brought this to my attention because we had just finished a unit on contractual waivers of liability.
I am of two minds about this one. I am not a thrill-seeker and do not understand that drive. But the attraction is popular, and it stands to reason that satisfied customers overwhelmingly outnumber the people who are moved to litigate or agitate over the experience.
One the other hand, there are allegations that McKamey employees continue to torment visitors even after they cry uncle. If that is a violation of the rules of the game, then the conduct is tortious. But given the forty-page waiver, it seems likely that the visitors waive all claims, including claims arising out of intentional torts. My learned colleague Barry Johnson, on whose shoulder I cry when I do not understand the world, analogized the situation to a boxing match -- that certainly involves an agreement to allow oneself to be punched.
The cases are distinguishable in ways that I find concerning. Of course, there are problems with boxing itself, and boxing is tame compared with its contemporary cousins. But it seems unlikely to me that the typical boxer enters a match in the hope of getting beat up. They intend to deliver the beating and they are trained to protect themselves. By contrast, I assume that McKamey visitors do not get to respond to their tormentors with punches and kicks. Moreover, boxing is heavily regulated, and there is a neutral official in the ring who enforces rules and intervenes when a combatant is injured. The safeguards that are in place at McKamey's seem designed to protect Mr. McKamey from liability rather than to protect participants from injury. So even if I were okay with boxing, I might not be okay with McKamey's.
As my students well know, I am not a fan of liability waivers. I do not think that venues that host dangerous activities ought to be insulated against liability for their own negligence. If you host a dangerous activity, you especially should not be negligent. If you are negligent, you should be subject to lawsuit, and if you cannot get insurance to protect you against liability, you should be driven out of business, and then we will only have non-negligent venues hosting dangerous activities. Does that mean that there will be fewer extreme haunted houses, paintball venues, and other sites of totally foreseeable life-altering injury? I can live with that. Will those that exist be more expensive? Great! People ought not to casually engage in activities that could result in serious injury.