Haunted Houses, Imposter Trick-or-Treaters and a Lawyer in a Horned Halloween Costume
Halloween is right around the corner, which means that children are preoccupied with putting the finishing touches on their costumes and computing the fastest routes to the most generous houses, and plenty of adults are going to Halloween parties. If you find yourself at one such party and should happen to strike up a conversation with an attorney, or at least someone dressed as one (you can usually tell by the horns), perhaps you will find it amusing to bring up one of the following topics of conversation:
Must a seller disclose to a buyer that their house is haunted?
Many states, including Texas, require sellers of residential property to disclose certain known property conditions to the buyer. The required disclosures are usually enumerated, and may include termite damage, previous fire or flood, use of asbestos or lead based paint, etc. Some states even require disclosure of deaths occurring on the property, but the duty to disclose may depend on the manner of death, e.g. murder or suicide. Also, some states, either in lieu of or in addition to the common enumerated disclosures, require the seller to disclose conditions which materially affect the value of the property. In some cases, that may include the fact that the property is known or reputed to be haunted. For example, in the famous case of Stambovsky v. Ackley, a buyer in New York was permitted to maintain a cause of action for rescission of his purchase agreement because the property was reputed to be haunted. In a very tongue-in-cheek opinion, the court held that the buyer, who was not from the area, could not have discovered through reasonable diligence that the property was reputed to be haunted.
Can a trick-or-treater be sued for wearing a costume in the likeness of a real person?
Within the broader tort of invasion of privacy is a cause of action known as appropriation of likeness. Cases involving appropriation of likeness are sparse, but the cause of action typically occurs when (1) the defendant appropriates the plaintiff’s likeness for its value, (2) the plaintiff can be identified by the appropriated use, and (3) the defendant benefits from the appropriation. In some cases, a plaintiff must also prove that they have been damaged by the appropriation—in the legal sense, “damage” means legal injury, such as damage to reputation or value, and not necessarily physical damage. In the Halloween costume context, it is critical to remember that the appropriation of likeness cause of action protects the value of the likeness, and not the likeness itself. To prove that the value of their likeness has been appropriated, a plaintiff may argue that the trick-or-treater benefitted from the value of their likeness by receiving a handful of candy. However, this theory likely requires the plaintiff to prove that the handful of candy was given solely because of the value of their likeness, and not for any other reason, such as being presented with the option of trick or treat. Also, the plaintiff may need to prove that they were damaged by the trick-or-treater’s appropriation. In that regard, perhaps the plaintiff would have to prove that they were denied a handful of candy because they were mistaken for the defendant coming back for seconds; which, of course, would not only require the plaintiff to trick-or-treat at the same house after the defendant, but would also require them to do so without a costume. Therefore, trick-or-treating in the likeness of someone else is not likely to result in a civil lawsuit.
There are many other legal issues surrounding the celebration of All Hallow’s Eve, but these two ought to suffice for any small talk with an attorney, or someone who has appropriated the likeness of an attorney, at a haunted house party. Have fun, stay safe, and Happy Halloween!
Byron L. Brown is an attorney with the Randle Law Office in Houston, Texas, where his practice areas include municipal economic development, municipal franchises and commercial lease litigation. He graduated from the University of Texas at San Antonio with a B.A. in Criminal Justice, and earned his J.D. from the University of Houston Law Center.