The Most Liable Place On Earth: Disney Faces Strong Tort Claim In Child’s Death

16alligator_web1-master768-v4Disney 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.

105 thoughts on “The Most Liable Place On Earth: Disney Faces Strong Tort Claim In Child’s Death”

  1. Disney will settle this case quickly and quietly with a few millions to the family to avoid all this terrible press and bad PR—no question.

  2. There was an alligator attack on a child in 1986 at WDW. Fortunately, he lived. At that point in time WDW knew there were alligators on their property that could, and did attack a child. It shouldn’t have taken them 30 years and a senseless tragedy to post signs warning of alligators. If it happens once, it can happen again!

    Shades of Green, the U.S. Military Resort on Disney property already had signs posted by its small pond prior to the recent attack warning guests “do not feed or go near the alligators.” There are similar signs at the Hyatt Grand Cypress resort just outside of WDW also. Perhaps WDW should hire their risk management people!

    As someone else already pointed out, Disney has no shortage of signs on the property regarding other rules and safety measures-certain rides advise people with back and neck problems as well as high blood pressure, etc not to ride. For crying out loud Disney saw the need to warn people that are about to ride
    Splash Mountain that they are going to get wet! So how about putting up a sign warning people of the hidden danger lurking in their lagoon?

    Disney shows movies on the Grand Floridian beach,and guests can watch the Electrical Light Parade on the lagoon from that vantage point as well as the fireworks. So it is an area frequently occupied by families with small children. A “no swimming” sign is not sufficient to warn people of the danger of alligators in the area.

    My heart aches for this family and their tragic loss. I hope their family and friends wrap them in love and help them through the grief. I can’t even imagine what they are going through.

    1. amy – if you have seen the video of the DIS employee pushing the gator back into the lagoon at Splash Mountain, you would see the need for DIS to add a warning that gator may join passengers on the Splash Mountain ride. That would certainly add to the thrill of the ride. 😉

  3. While I agree this child’s death was tragic I don’t think the family will be contemplating blame, suits or compensation. They’ll be too busy grieving their loss. Ideal time for Disney’s lawyers to offer a goodwill gesture of paying for the room, funeral and transporting the body home. They may also make an offer of compensation as long as a non-disclosure is signed and no further action taken to mitigate the bad publicity this case has already generated. Disney advertise themselves as family friendly and should have warned about the alligators in their lagoon. The chairs on the beach give an assumption of safety as long as you don’t swim. Alligators have legs and feet therefore don’t have to remain in the water. Tragic accident, yes. Who was at fault? Disney should have done more but I don’t think they’re 100% at fault, maybe 90% at best. Will this case go to court or be settled before then if the family were to sue? Before to avoid any more adverse publicity. So why not settle now?

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