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.
I can’t help but imagine the alligator attorneys that are going to stalk this family and take a big bite of whatever the settlement will be.
Cities like Chicago and Baltimore should take note of how this is handled. Perhaps they will need to consider putting up warning signs upon entering their cities or risk being held liable for the predators that lurk within their city limits.
Youd think that they would put in ‘shark nets’ around the beach to protect against it. There are some new nets that are safe for wildlife too
Apparently the behavior of alligators at beaches and small inland lakes can be quite different. Anahuac Wildlife Reservation near Houston has alligators. In that park there is a car road flanked by a canal. The alligators are always on the other side of that canal. The rangers have confirmed that these alligators never go on the car road even at night when the park is closed to visitors. During the nasty Texas drought the park was closed for visitors for several months. I later asked the rangers again. No, the alligators never got on the road or across it.
The park has beaches on the Gulf. Alligators have never been seen on those beaches. They seem to prefer the fish- and duck-rich ponds inland.
Paul Schulte,
You’re “sure” the room has been comped and funeral arrangements have been paid for? Really? Think so- excuse me- Know so? Hah!
First off, the lawyers aren’t footing any bills for anyone.
Secondly, no lawyer would let his client pay out such amounts because it would be an admission/acceptance of liability that would come back to bite them in court.
Your error is two-fold: You don’t know anything about the law, and you think Disney has a conscience and is capable of compassion. Disney is pure evil.
These threads are a waste of time
T. Hall – Disney loses a couple of happy visitors every year. Good will is one of the things they are really good at. They want to mitigate the damages. Comping the rooms is no big deal and helps with the good will. If it got out that they charged them for the rooms on top of killing their kid, the damages would sky rocket. They are probably not going to hit the top of DIS insurance coverage as it is.
Part of any resolution is likely going to involve the Reedy Creek Improvement District, the quasi-gov’t agency that manages gov’t services for the local landowners, i.e. Disney and a few of its close friends. http://www.rcid.org/. There are two actual cities on Disney property, though they contain virtually no real residents.
It would be interesting to know what part of the waterways there are under RCID jurisdiction.
I am having a hard time with this situation. I live on the coast in Mississippi, we have a 3 acre pond/swamp running parallel with the main road. Although mostly hidden by trees, there are occasions when cars stop and attempt to access it for fishing in spite of no trespassing signs. Still, when I see that I will promptly alert them to the dangers of the ever present alligators. I cannot wrap my head around Disney World lack of warning signs. I just do not understand. How on earth can these parents ever come to grips with it? Offering a mass of consolation for them.
the idea that Disney knew there were gators in the lake and failed to warn screams liability. the patrons of that facility are not locals, they are from all over the world. longdumb is way off base thinking that everyone on the property should have been aware of the danger. a good point was made in another comment, that gators are not like sharks, they are not confined to the water. for a good distance, a gator can outrun the fastest NFL wide receiver. the “no swimming” signs are a clear indicator, and admission, of the danger from the lake. liability is not an issue; public relations and a very large settlement check are the only issues to be determined.
No court, no jury, maybe no lawyer (save money)? Disney pays quietly whatever it takes, this is DISNEY. Shanghai Disney Park just opened $5.5 Billion.
Look Out, Mickey: Lawyer Says Parents Of Tot Killed By Disney Gator Could Sue!
The killing of a two-year-old boy by a giant alligator could cost the Walt Disney company “eight figures and up” in damages, a top lawyer predicted.
“This family can bring a wrongful death suit against the Walt Disney World Corporation if they had actual or constructive knowledge of a dangerous condition on their premises,” Orlando attorney Matt Morgan told Radar. “It easily will be an eight-figure case, based on the pain and suffering these parents will experience over their lifetimes.”
“The damages will go up and up and up if there turn out to be aggravating factors,” Morgan said. “For instance, this lagoon has a white sandy beach with chairs set out on it, looking very inviting to visitors, and there is no perimeter fence.”
Indeed, Morgan, who is famed for slapping theme parks with liability cases, revealed he has deeply personal reasons to suspect Disney didn’t do enough to protect the child from the nearly seven-foot-long monster that snatched him at the man-made Seven Seas Lagoon.
“Ladies and gentlemen of the jury panel. I know that you are all residents of the county and I would like to see a show of hands of all who live within a block of waterfront property whether it is beach or river or swamp?
Ok. Now I see 24 hands up and there are fifty of you here. How many of you are aware that there are creatures in the water known as alligators?
Ok. All of you.
Now, with regard to the whole panel, how many of you are aware that there are alligators in the waters of our county?
Ok. All of you.
Now. How many of you have been to Disneyland here in our county?
Oh. Almost all of you.
How many of you have children yourselves in your lifetime?
Ok. Roughly three fourths.
Now, how many of you with children would allow a two year old to wade in the water at the beach over there in Disneyland?
Ok. None of you. Is that because of this incident or would your answer be the same prior to this incident. Lets see a show of hands of those who would have let your child wander in the water at the beach at Disneyland before this incident happened?
None of you. Ok.
Now excuse me if you think I am being crass. But how many of you think that these plaintiffs sitting here might need to have their heads examined? Show of hands.
Ok. Roughly 90 percent.
Your Honor, the entire panel is acceptable to me. I have no further questions.”
Elton – the bright line for the jury will be ‘what is reasonable for a couple from Nebraska’ not from Florida.
How many restaurants along a busy highway warn their patrons or the public passing by of the dangers of automobiles if the pedestrian child steps off the sidewalk?
Who the Hell in Florida today has not known of alligators?
When is George Washington University going to warn students of the danger of muslims roaming the streets of DC? Huh?
It speaks for itself. If the Foo itShays wear it.
Elton – I will have to admit when I think of Disney World my first image is not of gator. Actually, none of my images are of gators.
I to do not think subsequent posting of signs, killing alligators or building a barrier would be admissible. If it were, defendants would be less likely to take remedial action until the case was ended, which would be bad public policy. It only makes sense for the law to encourage remedial actions rather than make such actions an admission of sorts
So tragic and sad for a child to suffer this terrible death.
The CEO of Disney should personally intervene and write a very large check to the family. If he doesn’t, he’d be more lucky if the alligator got him before the jury did.
*an* please!
Although there are some defense arguments that could be made, I cannot imagine this case going to trial. Disney (“DIS”) is run by smart businessmen and they know that this case should be settled at some point in the near future. A “No Swimming” sign definitely does not cut it for DIS. Given the danger of the lagoon, at a bare minimum, there should have been signs and even a barrier on the land well before the water even starts. Alligators don’t always just remain in the water and could easily have gone onto part of the land adjacent to the water to snatch someone, so the warning about “no swimming” does not begin to address the genuine danger present. Doubtless, DIS has already changed its signs, warnings, access, etc. to attempt to correct their warning deficiencies, which becomes an admission, of sorts, of liability.
The real question, however, is not liability in this case, but the amount of damages that is appropriate in this tragic death of a two-year-old boy.
On this point, I am reminded of the movie, A Civil Action (1998); screenplay by Steven Zaillian. In the opening of the movie, John Travolta, playing a real life attorney, Jan Schlichtmann, has a voice-over monologue in which he addresses the damages in personal injury cases:
“It’s like this. A dead plaintiff is rarely worth as much as a living, severely maimed plaintiff. However, if it’s a long, agonizing death, as opposed to a quick drowning or car wreck, the value can rise considerably.
“A dead adult in his 20s is worth less than a middle-aged one, a dead woman less than a dead man, single adults less than married, black less than white, poor less than rich.
“But the perfect victim is a white, male, professional – 40 years old, at the height of his earning power, struck down in his prime.
“And the most imperfect? Well, in the calculus of personal injury law, a dead child is worth least of all.”
Yes alligators pose a threat. Disney has been on this lake for how many years? How many alligator attacks in those years? I lived on the water on a river at a public access marina and there is not a sign warning of the gators here or in all of NC or SC.
What JT wants is absolute liability for Disney. But they probably are not allowed to kill off the gators in this lake. Maybe we need signs at the FL border: stay the ukFay out! Do not go near any area with water. Carry a weapon to protect your kids. Shoot gators on sight. Shoot muslims on sight. Do not go into any gay bar.
If there is a lawsuit it will be tried in FL. I would like to pick that jury for Disney. FL people know about gators. FL people do not want to be held liable for gators on their lakefront or back yards. FL jurors will be in favor of Disney. Walt is not involved.
Elton – since Disney is an international corporation, with hq in CA I think you could hold the trial in their home state. Discovery would include the no. of deaths and injuries at Disney parks each year. This something that Disney would not want public.
I don’t think Disney’s capturing and killing five alligators would be admissible. I haven’t been in law school in a long time, so perhaps the law has changed, but I recall that subsequent remedial measures were inadmissible in tort cases. In any case, it is a horrible situation. More than the loss of the son, the fact that it happened in front of them and the father will always be haunted by his inability to rescue the boy from the alligator’s grip. I doubt the family wants to go through a trial. Disney should offer them a generous settlement, and of course, post some damned signs. These folks are from Nebraska, and there is little reason to think that they would have let the child play in the water if they had any idea how much danger he was in.
At one of my favorite beaches in Northern California, shark warnings begin in the parking lot. Since Great Whites love to hang out not far offshore, swimming/wading/surfing are verboten. As you hike the mile to the beach, you see the same warning signs about every 100 yards. By the time you reach the Pacific Ocean, you’re either thinking “okay, I got the message!” or you’re hearing the Jaws theme on a mental loop.
Now, I’m willing to wager that the statistical likelihood of a gator attack in Florida is greater than a shark attack off the Marin County coastline. The only reason I can imagine for Disney failing to note the presence of alligators is that doing so would spoil their carefully created faux-utopian resort. Well, now Disney must pay the price for trying to pull off a false sense of safety.
Jonathan, do make sure your views and advice reach the family.
How much would it have cost Disney to post allegater warnings? Or did they choose to avoid that so as not to scare off visitors?
I am sure that Disney attorneys have already comped the rooms and are paying for the funeral arrangements. They will be talking damages when the family recovers from the shock.