Trick-or-Treating and Homeowners’ Liability for Injuries: A Guide

By | October 31, 2016

Halloween pranks. Google this phrase and more than 5 million results link you to a myriad of ways to “mess with peoples’ minds” on Halloween. Some of the recommended pranks require a higher education to understand; some ideas are, well, strange; but some pranks are meant to do one thing – scare people (mainly kids). When kids and adults get scared, they do strange things, and sometimes they get hurt, or hurt someone else.

This is not intended to take the pranksters’ fun out of Halloween. Rather this is a review of the legal liability placed on those who set out to scare the little candy beggars coming to doors this evening. Even if you (or your clients) don’t intend to scare or “trick” the neighborhood kids, could you face legal liability for any injury occurring on your property because of your (or your client’s) “relationship” with the trick-or-treaters?

Legal liability is liability imposed by the courts through common law or by statute on any person or entity responsible for the financial injury or damage suffered by another person, group or entity. If you (or one of your insureds) is found legally liable for an injury, will the homeowners’ policy cover the loss?

There are three requirements that must be met to be held legally liable: 1) negligent conduct; 2) actual damages; and 3) the negligent conduct must be the cause of the injury. When all three tests are met, the person (“natural,” “unnatural” (since this is a Halloween piece) or “legal”) is considered legally liable for the injury and must pay the costs of all damages.

[For a more complete discussion of legal liability, the three tests required to prove it, and other related issues, see the document, A Guide to Homeowners’ Liability for Injury to Trick or Treaters, by Christopher J. Boggs.]

When the porch light is on, trick-or-treaters are considered invitees; the homeowner is inviting them onto the property (though not for a mutual benefit). Because of this relationship, the homeowner owes the candy seekers the level of “reasonable” care that falls under Ordinary Negligence.

Even if the homeowner is not planning on scaring the kids, he/she must warn about the loose brick or cracked sidewalk, fix the hazard or protect the invitees from unrepairable hazards.

If the porch light is off, the same level of care is not required. The homeowner has not invited the kids onto his property to get candy. To breach a duty to what are now trespassers the homeowner must be grossly negligent. However, since kids are involved, the duty of care may fall in between Ordinary Negligence and Gross Negligence.

Depending on the facts surrounding the injury, the homeowner who endeavors to prank the kids or fails to protect the kids from known hazards may have breached his duty owed. If such breach does occur, the homeowner has taken the first step towards being found legally liable.

Damages

If negligence is proven, legal liability next requires showing that the injured party suffered actual damages. Remember, insurance responds to financial loss only, so these damages must be couched in monetary terms.

Actual Cause of the Injury

Once negligence and actual damages are proved, the last step towards establishing insurable legal liability is determining whether the act is the actual cause of the harm. Several legal theories combine to judge causation and establish legal liability; these are: cause in fact; proximate or legal cause; and intervening acts and superseding events.

The basic premise of the cause in fact rule is: without the actions of the supposed at-fault party there would be no injury or damage. The inverse question is, “If the wrongdoer’s act or omission is eliminated, would the injury or damage have occurred anyway?”

Proximate or “legal” cause is the legal theory used to limit the scope of the wrongdoer’s liability for injury arising out of the cause in fact. Proximate cause applies when there is no question that the injury or damage would not have occurred but for the actions or inactions of the wrongdoer (the cause in fact); but a question exists regarding whether the resulting harm is proximately close enough to the initial event in geography and time such that any punishment or consequences laid upon or charged to the at-fault party are fair and just.

As an example of the concepts of “cause in fact” and “proximate/legal cause,” consider the prank featured on nearly every home video show – the scarecrow with the candy bowl. For this prank the homeowner dresses like a scarecrow and sits motionless on the front porch with a candy bowl in his lap. When the kid reaches into the bowl, the scarecrow-clad man lurches towards the kid and says, “Boo” or “Gotcha” or whatever.

Inevitably the kid screams and jumps (sometimes hitting the scarecrow). This is the intended reaction; but what if the child falls down the steps and knocks his teeth out or breaks an arm? The actions of the homeowner in this case are likely to be considered the cause in fact and the proximate/legal cause of the child’s injury.

Intervening acts and superseding events relate directly to the determination of the cause in fact and proximate cause. An intervening act is one that is or should be reasonably foreseeable and thus does not relieve the original wrongdoer of his liability for the injury.

Legal Liability and the Homeowners’ Policy

If damages are shown, does the homeowner pay these costs out of pocket or is coverage available from the liability section of the homeowners’ policy? The answer, once again, depends on the facts of the injury.

Section II of Insurance Services Office’s (ISO’s) unendorsed homeowners’ policy extends coverage for Personal Liability (Coverage E) and Medical Payments to Others (Coverage F). Coverage E pays only when the insured is found legally liable where Coverage F does not require the insured to be legal liable for coverage to exist.

Coverage E – Personal Liability

Coverage E’s insuring agreement reads, in part: “If a claim is made or a suit is brought against an ‘insured’ for damages because of ‘bodily injury’ or ‘property damage’ caused by an ‘occurrence’ to which this coverage applies, we will: 1. Pay up to our limit of liability for the damages for which an ‘insured’ is legally liable.”

If the insured is found legally liable for injury arising out of a prank, Coverage E’s insuring agreement extends coverage. However, the insuring agreement is the broadest the protection is ever going to be, the policy’s exclusions must be reviewed before making a coverage determination on a Halloween prank gone wrong.

Coverage F – Medical Payments to Others

ISO’s Coverage F insuring agreement begins: “We will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing ‘bodily injury.'” But the insuring agreement goes on to state: “This coverage does not apply to you or regular residents of your household except ‘residence employees.'” As to others, this coverage applies only: 1.To a person on the ‘insured location’ with the permission of an ‘insured.’

Coverage F applies because when the porch light is shining the trick-or-treaters are invitees and on the insured location with permission. Turn off the porch light and permission is no longer granted – Coverage F may no longer apply.

Expected or Intended Injury

Only one exclusion found in the unendorsed homeowners’ policy, applying to both Coverage E and Coverage F, appears to hold the possibility of removing coverage for injury to a prank victim: Section II Exclusions – E.1. Expected or Intended Injury. This exclusion reads, in part: “Coverages E and F do not apply to the following: 1. Expected Or Intended Injury ‘Bodily injury’ or ‘property damage’ which is expected or intended by an ‘insured’….”

Neither the prankster nor the homeowner failing to warn of a hazard expects or intends to cause bodily injury to a trick-or-treater. Yes, the prankster expected and intended for the children (or even adults) to scream and jump, but not to fall down the steps or experience any other harm.

Thus, Exclusion “E.1.” does not initially appear to remove coverage provided by either Coverage E or Coverage F for a Halloween prank. But even this interpretation is subject to the facts of the prank. In general, this exclusion does not apply to pranks intended to scare the neighbors.

The short answer to the second question posed by this article – “yes,” the homeowners’ policy does cover the cost of an injury arising out of a Halloween prank under both Coverage E and Coverage F. But this is a “yes” with limitations: 1) the policy/coverage part limits; and 2) the expectation of or intent to injure.

Have fun tonight. Stay safe!

[For a more complete discussion of legal liability, the three tests required to prove it, and other related issues, click see the document, A Guide to Homeowners’ Liability for Injury to Trick or Treaters, by Christopher J. Boggs of the Academy of Insurance.]

About Christopher J. Boggs

Christopher J. Boggs joined the insurance industry in 1990. He is currently the Executive Director, Big I Virtual University and former Vice President of Education for Insurance Journal's Academy of Insurance. More from Christopher J. Boggs

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