As All Hallows Eve creeps near, local taverns nail down the valuables and prime the taps. Soon-to-be drunken revelers brainstorm for inspired costumes. And the elected officials of our fair city scramble to cover their bases and leave no safety measure undone.
While much has been made of the city's first-ever attempt to rein in and even organize the madness, one aspect of the new face of Halloween in Madison needs attention: Who, exactly, is responsible if things go wrong?
According to the city's official website, you are.
While the website provides information on how to buy tickets, what music and food will be offered, and where to park, a disclaimer emphatically states that the city is not a "sponsor" of this pre-planned "spontaneous" event. Ticket sales are only to recoup clean-up and policing costs, and anyone purchasing a ticket to cavort down State Street is doing so "at [their] own risk and responsible for [their] own safety and actions."
To UW law professor Peter Carstensen, this website waiver doesn't hold much clout.
"Putting up a warning on the website is ridiculous," he says. "It's not unreasonable to release a warning and make people aware of those risks, but to say that somebody who comes and expect them to waive the city's liability because they see this on the website is nonsense."
And the city knows that it is walking a fine line. While it has authority to control what happens on the streets without calling itself a sponsor, a report prepared by City Attorney Michael May says that the ticket booths set up around town are an untraditional way to address public safety.
"Controlling a crowd through gates and blocking streets," May writes, "is much more closely related to traditional police actions than charging a fee."
May then says that "the mere charging of a fee does move the city closer to a claim of sponsorship." The report goes on to warn that the fee may "cause the event to be perceived differently by the public, [and a jury]."
May's report concludes by urging the city to view this year's plan as a short-term solution. Repeated management of the yearly Halloween party will make it much more difficult to deny that the city is a sponsor, he suggests.
Carstensen says that this year's plan is probably the city's best course of action. The conundrum for the city, he says, is that Halloween isn't a spontaneous event at all, but an all-too-predictable recurring party. Carstensen says that, if the city hadn't done anything to address the annual Halloween fete, it might be in a worse position legally.
"I would say the more they do the more liability they assume," Carstensen says, "but I would also say the reverse is true. My reaction is who cares whether they're sponsoring it or not, if it"s on city streets the city is involved."
This is a concept called "due care," and it is applied to any municipality, basically charging that any village, town, or city is responsible for the safety and welfare of its citizens. According to Carstensen, the issue of liability for this year's Halloween party comes down to one question: "Does the city do things that increase the risk of harm [to Halloween partygoers] or that reduce the risk of harm?"
"Under these circumstances," Carstensen says, "I would say they are taking steps to reduce the risk of harm."
Cities constantly try to reduce risks for their citizens, from filling in cracks in the sidewalk to monitoring restaurant cleanliness. And the Halloween party is a gigantic crack in the sidewalk that the city has been stepping around since the 1970s.
Carstensen says it's about time the city addressed the problem. He says that if the city has researched the potential dangers and taken steps to avoid them, it should be legally safe from liability claims.
"People injured in past events have a bigger complaint," he says, "because they're the ones that the city didn't do enough to protect."