Disney is facing what would seem to be an overwhelming case for liability in the death of 2-year-old Lane Graves who was killed in a shallow lagoon near his family’s resort rental. The failure to adequately warn tourists and take reasonable steps to address the danger of alligators was clearly negligent in my view. While the last thing that Matt and Melissa Graves will want to think about is liability (and they have at least a year under the statute of limitations), they should sue Disney for the loss of their son.

Lane was splashing around in the shallow lagoon while his parents rested on the beach with his sister. The alligator sprang from the water and grabbed the boy. Lane’s father, Matt Graves, ran into the lagoon to try to take his son from the alligator’s jaws but could not break him free.

Reports indicate that employees had expressed concern over the danger presented by the alligator. The lake at Disney’s Grand Floridian Resort and Spa covers 200 acres and is well known by locals to contain alligators. Disney put up signs however that read “no swimming” near the lagoon and did not apparently warn about alligators.

There is a considerable difference between a sign warning not to swim and a sign warning about alligators. The former are ubiquitous and often ignored. The later is a sign that few would ignore. Moreover, Lane was not swimming but wading in the lagoon. The parents could have misunderstood the danger if the boy was just playing in the shallow water under their watch.

Even if there could be a claim of negligence for a child wading in the water, children under six in Florida are generally viewed as lack the legal capacity for negligence.

Of course, Disney could argue comparative negligence for the parents’ claims (as opposed to the child) of negligent infliction of emotional distress, wrongful death etc. Since 1973, Florida has been a “pure comparative negligence” state where plaintiffs can recover the percentage of damages not attributed to their own negligence. Thus, if the parents were deemed 25% at fault, they would received 75% of the damages. Notably, this is not a “partial comparative negligence” state where the parents could be barred if they are 50 percent at fault or more. Even assuming that jury considers the signs to be clear warnings, it is doubtful that the parents would be over 50 percent at fault. Nevertheless, in a pure comparative state, that determination is not required.

In my view, the signs were clearly not sufficient to shoulder the burden of Disney.

Under the common law, there is strict liability for injuries caused by wild animals in your possession. However, that would raise the question of whether these alligators are in the legal possession or control of Disney since they occupy the lake. This was the issue in Woods-Leber v Hyatt Hotels of Puerto Rico (1997), Hyatt was found not to be strictly liable for an attack on its grounds by a rabid mongoose on a guest. It was not viewed as possessing the animal since wild animals could move freely on to the property. The same issue came up recently in the United States in the case of the woman who had her face ripped off by a neighbor’s pet chimpanzee and a case in Arizona involving a javelina. Notably, after the attack, Disney captured and killed five alligators to see if they were responsible for the death — an indication of their control over the lake.

Assuming that the alligators were viewed in the same way as the Woods-Leber case, there would remain a powerful case of negligence. There is the added burden according to invitees on a business property and the duty to fully warn and make safe the property from known and latent dangers.

All of this means that Disney counsel would be wise to come up with the largest possible settlement that they can conceive and seek to settle this case. In the meantime, Disney’s insurers are likely to do what Disney failed to do: order changes to avoid the obvious danger to families on the property.