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6th Flashback: Circuit Denied Damages in Halloween Costume Lawsuit

By Robyn Hagan Cain | Last updated on

Before you make your own Halloween costume out of unconventional materials, ask yourself: WWMD? What would Martha do?

Of course we're referring to domestic goddess Martha Stewart, who we suspect would only incorporate non-flammable materials into her homemade Halloween costumes. And with good reason: some jurisdictions, like the Sixth Circuit Court of Appeals, are hesitant to award damages in failure to warn/Halloween costume lawsuits.

Susan and Frank Ferlito learned this lesson the hard way after Frank's homemade sheep costume turned into a homemade fireball.

Yes, Little Bo Peep quite nearly lost her sheep in the Sixth Circuit’s Ferlito v. Johnson & Johnson. Susan and Frank decided to try out this classic couple’s costume combo for a Halloween party in 1984. Unfortunately, Little Bo Peep costume pairings tend to present problems.

For starters, Peep, traditionally a woman, looks hot, while her sheep partner feels ridiculous for getting suckered into a sheep costume.

Then there’s the fact that sheep costumes are expensive.

Susan, however, came up with a budget-minded solution, and made Frank’s sheep costume using long underwear, cotton batting, and Elmer’s glue. (A woman armed only with crafting supplies and her wits is a formidable force.)

When Frank attempted to light a cigarette while wearing the costume, he accidentally lit his cotton-batting-fleece afire. Frank was “engulfed in flames” within a matter of seconds.

Frank and Susan sued Johnson & Johnson, the company that produced the cotton batting, based on a failure to warn. At trial, the Ferlitos admitted that they knew that cotton batting was flammable, they just didn’t know how flammable.

Though a jury awarded the Ferlitos a combined $620,000 in damages, the district court set aside the verdict faster than you can say cotton-batting-fireball.

Here, Frank admitted that he was distracted when trying to light the cigarette, and that he ignored warnings on cigarette packaging daily. Furthermore, the Ferlitos never expressed that they wouldn’t have used the cotton batting if it had included a warning.

Thus the Sixth Circuit Court of Appeals affirmed the district court’s grant of judgment notwithstanding the verdict (JNOV), agreeing that the Ferlitos had not demonstrated that a failure to warn was the proximate cause of the injury.

Beware of Halloween costume lawsuits that lack sufficient evidence in the Sixth Circuit Court of Appeals, readers; a JNOV finding is a frightful way to finish a trial.

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