The Case of Halloween 2020: Haunted or Happy, and Should I Get a COVID Waiver for my Little Solicitors? | Locke Lord LLP

It’s that most magical, spooky, and hauntingly fun time of year again…Halloween! But the usual questions people ask themselves as October 31st approaches – “What costume should I wear? How many trick-or-treaters should I expect this year, and is this enough candy for them if, hypothetically, I’ve already eaten half the bag?”¹ – might seem trivial this year. Health and safety concerns, and perhaps legal liability waivers, might be more pressing this Halloween, as we try to decide The Case of Halloween 2020: Will trick-or-treating be haunted or happy in Texas this year, and do I need a COVID waiver?

For Texas lawyers – perhaps the scariest of all Halloween creatures – to answer that compound question, preternaturally, we must first ask the non-penultimate: “What is the legal definition of trick-or-treating?” In blackletter terms, it is the “solicitation of gifts, food, candy, or (less mainstream) contributions of money in the celebration of the 31st day of the month of October, as is customarily and commonly known as Halloween.” 

When considering The Case of Halloween 2020 – a year that may already feel like a horror film – COVID remains a haunting specter. Texas litigation involving potential liability relating to COVID infections is on the rise,² and concomitantly, one familiar legal mechanism designed to help minimize disputes that we are seeing used more frequently in Texas is the COVID liability waiver. More particularly, as minor children have returned to school in Texas, as well as a host of other youth-focused activities, and not just relating to Halloween, parents are being required to sign COVID liability waivers on behalf of their children for just about everything – including in many areas, in-person school attendance. But there is a catch: The enforceability of such releases on behalf of minor children is not an issue that has ever been decided by the highest Court in Texas, and few intermediate appellate Texas courts have considered the question. It follows, then, that this must be our first Issue Presented in deciding The Case of Halloween 2020…

‎Should I require COVID waivers before haunting or hosting any Halloween Solicitors on my property this year?‎

In addition to the logistical challenges this might present the average homeowner, ‎it’s unclear whether such a waiver would be enforceable against minor children (the most common solicitors) under Texas law. 

But larger operations and venues and any other Halloween-hosts worried about legal exposure, should at least consider a COVID waiver as a prerequisite to minor children’s participation in Halloween ‎festivities. After all, the Texas Supreme Court has never invalidated one, and by-and-large, properly-worded liability releases are enforceable under Texas law.‎³

In its most basic form, a release of liability is a “contractual arrangement whereby one party assumes the liability inherent in a situation, thereby relieving the other party of responsibility.” Biscamp v. Special Pals, Inc., 01-19-00005-CV, 2020 WL 716739, at *4 (Tex. App.—Houston [1st Dist.] Feb. 13, 2020, no pet.). These releases of liability operate to extinguish the claim or cause of action as effectively as would a prior judgment between the parties, and when enforced, it is an absolute bar to any right of action on the released matter. Id. Thus, release is an affirmative defense. Id. While releases of liability are generally acceptable defenses in Texas, they must meet certain requirements. A release of liability for some potentially unknown, future negligence is enforceable only if it comports with both prongs of the “fair notice requirement”: (1) conspicuousness, which usually requires the release-language to be in BOLD, ALL CAPITALS, preferably in larger font, and (2) consistency with the express negligence doctrine, which means expressed in clear and unambiguous terms within the four corners of the contract. Id. at *5‎.

Nevertheless, there are open issues. For example, no Texas appellate court has yet to opine on the legality of a ‎COVID-specific waiver, although there are plenty of test cases pending in several Texas trial courts. These new COVID liability cases will add a layer of complexity to the typical negligence claim.

Another big uncertainty that dovetails with the increased rise in COVID litigation and use of liability waivers for the young⁴: The Texas ‎Supreme Court has never ruled on whether liability waivers signed by a parent on behalf of a minor child are enforceable ‎in Texas. Property and business owners in Texas hosting ‎activities for minor children (especially lawyers and their relatives)‎ often worry about potential liability exposure in the event a guest is ‎injured. As a precautionary tool to help lower the risk of such exposure, liability waivers state, ‎among other things, that the person agrees to participate in the activity, the participant ‎understands there ‎are risks associated with the activity, and the participant agrees not to hold ‎the owner liable ‎for negligence in the event of an injury. But is a waiver like this enforceable when the participant is a child and the waiver ‎was signed by a parent or legal guardian?‎

Though the Texas Supreme Court has not answered the question, Texas intermediate ‎appellate courts and Texas federal courts making “Erie predictions” about how the Texas high ‎court might rule, have held generally that such liability waivers on behalf of minors are NOT ‎enforceable.  ‎

The first Texas case to address this issue was Munoz v. II Jaz Inc., 863 S.W.2d 207 (Tex. ‎App. – Houston [14th Dist.] 1993, no writ). Though they signed a waiver on behalf of their child, the parents sued after their nine-year-old girl was injured when she ‎fell off a ride at the defendant’s amusement ‎park. Id. at 208. Relying on the waiver defense, the trial court dismissed the case on ‎summary judgment, but the 14th Court of Appeals reversed, holding such waivers on behalf of minors are ‎unenforceable as a matter of law based upon public policy, certain provisions of the Texas ‎Family Code, and waiver cases from other states including New Jersey and Connecticut.‎ Id. at 209–10.

Similarly, in Paz v. Life Time Fitness, 757 F. Supp. 2d 658 (S.D. Tex. 2010), the United ‎States District Court for the Southern District of Texas relied on Munoz and its progeny to strike ‎another liability waiver signed by a parent after her child was injured at a fitness camp. Id. at 662–63. In ‎throwing out the waiver as unenforceable where the defendant was a commercial business, the ‎federal court predicted that is how the Texas Supreme Court would rule on the issue. Id. at 663. But Chief U.S. District Judge Lee H. Rosenthal suggested the outcome might be different were a school or non-profit ‎defendant involved.‎ Id.

For now, parents should be aware that any waivers they sign on behalf of their children may not actually waive a potential negligence or other claim that their child would have if they ended up injured or otherwise harmed. And homeowners or social hosts inviting others onto their property should likewise remember that they could still be liable for an injury or harm to a minor, even if they secured liability releases from parents upfront. Perhaps such uncertainty is yet another reason to consider virtual Halloween parties this season!

Notwithstanding the enforceability of an “Erie-ly” valid liability waiver from the youngest of Halloween Solicitors, the next Issue Presented in our evaluation of The Case of Halloween 2020, is more general and of greater levity…

Because of COVID, is Halloween Solicitation even legal this year?

Texas, unlike Los Angeles for example,⁵ is not legislating the legality of Halloween, but there are plenty of “guidelines” to help keep little (and big) goblins safe during this All Hallow’s Eve, notwithstanding potential ambiguity over waivers and releases. Below are just a few Halloween safety pointers from Dallas, Tarrant, and Harris Counties –

Dallas County health officials do not recommend Halloween Solicitation this year because it’s difficult for people to social distance on porches and in front yards, and reaching into the same candy bowl and passing out candy by hand is risky…and might be a little too gross this year:

• Avoid Halloween gatherings, events, or parties with non-household members. THIS INCLUDES BARS – Remember, the fewer people you interact with, the more you limit your exposure!
• Avoid “Trunk or Treat” events – Where children go from car to car instead of door to door to receive treats. Even though it is outside, it is difficult to avoid crowding and contamination in candy bowls

Instead, Dallas County recommends safe alternatives such as:

• Online parties/contests such as costume or pumpkin carving.
• Car parades where individuals do not congregate outside vehicles. Individuals in vehicles should be within households.
• Scavenger hunt style candy searches around your home or yard with household members 

Tarrant County health officials are advising residents to take the following safety precautions if they participate in trick-or-treating:

• During trick-or-treating, parents should limit the number of houses to visit and instruct their children to stay six feet apart from treat-givers. Parents should consider holding the bags for small children.
• Children should not be allowed to select their own treats from a bowl/common container unless there is a hand-sanitizing station setup.
• Wipe off candy wrappers with sanitizing wipes when you arrive home.
• Eat only factory-wrapped treats. Avoid homemade treats made by treat givers.

Harris County is assuring residents Halloween can still be hauntingly fun with a few more precautions. With the disclaimer that no one should go Halloween Soliciting or give out candy if they have COVID-19 or have been exposed to someone who has COVID-19, Harris County recommends the following precautions for residents who decide to solicitate:

• Bring hand sanitizer and use it each time after your child gets candy.
• Everyone in your group needs to wear a mask. Halloween masks don’t count! Do not wear a costume mask over a protective cloth mask because it can be dangerous if the costume mask makes it hard to breathe.
• Do not stand close to the door! If possible, try to stay 6 feet back from the person giving out candy and other groups that are trick or treating.

In Travis County, Austin Public Health officials are providing recommendations on how to safely celebrate Halloween during the COVID-19 pandemic by suggesting low-risk activities:

• Carving pumpkins with members of your household
• Decorating your living space
•  
• Hosting a virtual Halloween gathering with a costume contest or pumpkin carving show-and-tell
• Having a candy hunt or a piñata within your home

In Bexar County, San Antonio Metro Health officials have released safety guidelines for Halloween and trick-or-treating:

• Stay home if you are sick
• Limit the size of your trick-or-treating group to those within your household
• Avoid going inside homes, especially if they are haunted!
• Wear appropriate face coverings, costume masks are not adequate protection
• Maintain six feet of distance from other groups

Finally, of the highest legal levity (and perhaps least legal import), we confront our final Issue Presented in The Case of Halloween 2020…

Choice of Laws:  Can I sell one of my eyeballs to help pay for all the non-solicited Halloween candy I am accumulating this year?

No, just go ahead and eat it all up! Selling your eyeball is actually against Texas law. See Texas Penal Code § 48.02(b) (“A person commits an offense if he or she knowingly or intentionally offers to buy, offers to sell, acquires, receives, sells, or otherwise transfers any human organ for valuable consideration”).

One of but a few macabre laws (vaguely reminiscent of Halloween) in Texas, the Case of Halloween 2020 under a Texas choice of law appears to be left up to the individual (and their parents). Whereas, management of Halloween Solicitations are more strictly construed in other jurisdictions – and not just because of COVID. Beware the Halloween Solicitor who crosses state lines: Know the law of the jurisdiction in which you are engaging Halloween Solicitation…

No Masks: In Walnut, California, nobody can “wear a mask or disguise on a public street” without a permit from the sheriff — on Halloween and the other 364 days of the year, though presumably that law has been suspended under current Covid conditions.

No Sundays: Not to worry this year because Halloween occurs on a Saturday, but in Rehoboth Beach, Delaware trick-or-treating is illegal on Halloween if it falls on a Sunday. Bummer for Halloween 2021…

No nuns: In Alabama it’s illegal to dress up as a nun or any other clergy on Halloween (and any other day). Does that mean there are no live productions of “Sister Act” in the Crimson Tide State? 

No Silly String: In Hollywood, California, it’s against the law to “possess, use, sell or distribute Silly String” in public on October 31, but yarn and other serious string is perfectly legal.  

No adults (or big kids): In Newport News, Virginia, it’s illegal for adults and teenagers to trick-or-treat on Halloween, though perhaps it is permissible on other days of the year?

Happy or haunting, Halloween 2020 will be different, like so many things this year, but not just because of COVID: It is also a full moon and the start of Daylight Savings Time (PSA: Set your clocks back when you finish your candy)! And even if trick-or-treating presents too much risk in 2020, there is still a case to be made for a happy Halloween, and often laughter, or even just a cracked smile, is a good place to start! 

Legal levity aside, being mindful of the most current alerts and guidelines in your local area and from the CDC, wearing COVID masks, practicing good hygiene like your life depended on it (because someone’s just might!), and social distancing – these responsible precautions hopefully will help protect us all. And there are lots of different ways to celebrate Halloween,⁶ which may be less likely to require a liability waiver and release. Nevertheless, if you would like additional information on spells, potions, or Texas waiver laws or need help crafting a liability waiver, Locke Lord can help – even on Halloween.