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. There needs to be an immediate Congressional Committee formed to investigate what appears to be an unholy alliance that seems to be forming between alligators and gorillas. This is clearly a retaliatory attack to avenge the death of the gorilla, Harambe in Cincinnati. Something must be done! I mean, seriously, the Republicans have wasted millions chasing silly theories about Benghazi so, why not this?

  2. I find this case to be shocking–not just from the standpoint of the little child snatched by an alligator, but the fact that Disney even created a beach or lounge area near a fresh water lagoon that they actually knew contained alligators. Alligators are not fish–they can and do come onto land. Why would Disney create a lounge area near a body of water they knew contained alligators and not at least warn people of the danger? Disney World exists to attract small children and their families. Alligators are ubiquitous in Florida, and Disney clearly knew they were present in this lagoon, and there was precedent–another young boy was attacked in 1986. What were they thinking?

  3. What Karen said. You have to wonder if the parents will make it. They have the rest of their lives to replay that ultimate nightmare over and over in their heads. I cannot imagine.

  4. I am so heartbroken for these parents. This is a life sentence for them.

    Disney World specifically attracts visitors from out of state and around the world. It is my understanding this family was from Nebraska. Many people who don’t live in FL or LA would have no idea that alligators would probably be in that lake, or the precautions to take. They would have probably assumed this was a perfectly safe man made lake at Disney World. What out-of-towner would think there would be gators who could kill kids in a man made lake at a world renowned family resort? There have been allegations that they specifically did not post a warning about alligators because it would detract from their image. My grandmother was acquainted with Walt Disney, and my father was there opening day. Walt visited with them while they were eating lunch, and asked my Dad what he thought about the park. In those times, it was very unusual for an adult to have a long conversation wth a child, asking his opinion about anything. My dad greatly admired him. Walt Disney must be spinning in his grave.

    They should have posted explicit warnings. Their use of a vague “no swimming” sign indicates that they may have specifically understated the danger to protect their image. It is alleged they ignored repeated warnings from their own employees. If so, it will come out in court. They should be sued, although they would be howling mad if they didn’t settle immediately.

    But most of all they need to make drastic changes, including posting signs warning about the danger, and perhaps putting up a fence.

    I’ve spent time in LA, and I know an animal trainer that has quite a few young alligators. She showed me how sensitive they are to a single ripple in the water. It attracts their feeding interest.

    That family must have had no idea. They blame themselves enough, I’m sure. The “what if’s” must torture them. They must not have realized that wild gators had access to the Disney water feature. Many people are far removed from nature and wildlife that they don’t even know they are not prepared or if there is danger.

  5. ”If you really believe this…
    You don’t?
    Do you think they had *zero* personal responsibility here?
    I am not speaking of monetary damages, but real responsibility.

    “there’s no sense in me beating my forehead against the wall
    No, by all means continue.
    I find the rhythmic thud quite soothing.

  6. “Disney has gone to court arguing that it should be exempt from state EPA rules regulating wetlands
    “Modify nature” ≠ “Control.”
    Has Disney stopped hurricanes?
    Do they schedule the wind and rain?
    Have they conquered entropy and decay?

    “Vigilance can go only so far and when you find yourself in the middle of what is essentially a large garden,
    As a war vet you should know that eternal vigilance is the price of liberty.
    Stop vigilance because you are in a garden and you might lose your liberty.
    This child lost his for that reason.

    “Fleming has done more harm to America than all the terrorist attacks combined.:”
    I am sorry for what your head injuries have done to you.

    “decent people would cut these unfortunate parents some slack.
    Go back and read.
    I say Disney should write them a massive check.
    But the parents failed their child.
    I feel bad for them, but the world is a harsh and dangerous and unforgiving place.
    Even in a garden of family fun.

    Disney is not heaven, and As surely as Water will wet us, as surely as Fire will burn,
    The Gods of the Copybook Headings with terror and slaughter return!

    1. KC Fleming – DIS can control the wind and rain. They do it regularly in their movies and during their rides.

  7. Does Disney control nature?

    Actually, in Florida, it would seem so. Disney has gone to court arguing that it should be exempt from state EPA rules regulating wetlands, including the removal of vegetation and won. It’s also probably got it’s own set of standards regarding the handling of wildlife.

    It’s not as though these people were hiking in the swamps of the backcountry. They were vacationing ata a world famous resort that exhorts paying customers to escape the cares and worries of their everyday lives. A reasonable person would recognize that Disney’s powerful marketing is quite successful in portraying itself as a place where people can go and relax in a secure and soothing environment, and that’s what these Nebraskans were doing.

    Vigilance can go only so far and when you find yourself in the middle of what is essentially a large garden, decent people would cut these unfortunate parents some slack.

    I vote, and will continue to do so in order to try and undue the damage that voters like Fleming have inflicted upon this nation. After a lifetime of cumulative votes, Fleming has done more harm to America than all the terrorist attacks combined.

  8. T. Hall – I agree there are parts of DIS that are pure evil, their legal department, for one.

  9. Steve, I am from Nebraska and took my kids to the same Disney resort this family was in.
    I did not let my kids play in the water.

    Because I had heard of these strange beasts called ‘alligators.’
    This was back before the Internet, so it’s amazing, I know.

  10. bettykath logic:

    1. There are alligators in Florida
    2. Disney is in Florida and has inland waterways.
    3. “No swimming” signs mean “No lifeguard on duty.”

  11. If you admit that you “know about the alligators in Florida“, how could you be so foolish that you “would not expect either of these people-eaters” just because you were in Disney?

    Do you think Disney controls nature?
    Does Disney have magic dirt and the laws of nature are suspended on its grounds?
    Do they stop the wind and rain?
    Do animals nearby not eat and reproduce and bite and defecate and die?
    Is Cinderella real princess?
    Do you think Mickey is a real mouse?

    Please tell me you don’t vote.

    1. KC Fleming – Mickey is a real mouse and I will probably be voting for him for President again. It is my fondest hope to make Minnie First Lady during my lifetime.

  12. Gee, and I thought all those no swimming signs were intended as liability protection because there was no lifeguard on duty. I know about the alligators in Florida, and the pythons, but in the Disney environment of family fun I would not expect either of these people-eaters.

  13. “Ever been out of your Pleasantville element? Try arguing that rationale to a jury.

    Not surprisingly, you missed my point.
    I was explicitly excluding legal liability, which is primarily an income redistribution mechanism.
    Since you can indict a ham sandwich and people can be found to have committed 3 felonies every day, what the law says about this is worthless.

    I was addressing their lack of personal responsibility.
    Indeed, it is the Nebraskans who mistakenly believed they were in Pleasantville (i.e., Disney), and they could let their guard down.
    But Florida in general and Disney in specific are decidedly not Pleasantville.
    They are just regular old Earthly places, with nice buildings and cute cartoon characters, but built on a swamp near alligators, and cased by robbers, pedophiles and jihadists.
    Adults aren’t supposed to believe they are in Utopia when they go to Disneyland. That’s a child’s view.

    Litigation has contributed to the infantilization of US adults.
    So yes, you are correct, a US jury would never demand these adults bear personal responsibility for their own children. Someone else must pay, in large numbers.
    I do not dispute that a lawyer will argue they are blameless and that US jurors will agree.

    But it’s still the parents’ fault, ultimately.
    If they have any brains at all, they will be questioning themselves forever about their failure here.

    Again, I hope Disney bleeds money for this.
    Because I despise Disney.

    1. KCFleming writes, “I was addressing their [the parents’] lack of personal responsibility.” If you really believe this, there’s no sense in me beating my forehead against the wall. You win.

  14. Without a detailed analysis, my legal intuition is this,

    It is likely that Disney could put on a plausible defense against such a lawsuit; the lack of signs or other notice could be damning and pivotal, but the fact that Disney did not own those gators and likely had no legal right to regulate them could be a strong defense.

    However, there is no way that Disney should not, and would not, proffer a settlement that would be comparable to any reasonable damages win at trial, and as mentioned previously here they deal in good will towards the public and that is the only way to properly address this tragedy.
    With an amicable settlement, the public will view this as an unfortunate incident that Disney was unintentionally negligent but profusely apologetic and compensatory.
    If they can get the plaintiffs to forgive them, that would be even more of a coup.

    1. Gary T writes, “the fact that Disney did not own those gators and likely had no legal right to regulate them could be a strong defense.”

      Good analysis, but I don’t think it’s a very strong defense, unless Florida has strayed significantly from the common law.

      There’s obviously no legal duty to regulate the millions of gators in Florida, but an innkeeper has a common law duty of reasonable care (for its special relationship with its invitees, and because of its activities, also its licensees and even trespassers) to warn of and make safe, and even rescue them from known obvious dangers on its property. The beach was its property and the “No Swimming” signage, although inadequate to warn of gators, indicates the danger was known. And it was common local knowledge that gators were in the lagoon, so such an incident was certainly foreseeable. Disney’s general counsel is no doubt screwed and dreaming of being an Alaskan bush pilot. I agree with Nick: Disney better settle this quietly.

  15. “There aren’t many gators in Nebraska

    Their ignorance of the location they traveled to cost them their son.
    No money can bring him back.

    Who is ultimately responsible for a child’s safety, after all?
    I am not talking legal liability, which is primarily an income generator for lawyers.
    If you want your kid to live to adulthood and have their own children, who is responsible for ensuring their safety?

    When you lie down at night after losing a child because you didn’t wonder about a child’s safety in natural waters in an unfamiliar location, will you sleep better knowing it wasn’t your fault because there was only a ‘no swimming’ sign?

    Would a Nebraskan go to downtown Chicago and wander a few blocks off the Mile because there were no signs warning them of hoodlums?

    The US has raised a generation of invincibly ignorant adults who are simply not self-sufficient.
    This is what happens.

    I hope Disney has to write such a big check it makes them choke and blood spurts from their eyes.
    But there are more of these ignorant adults than ever before, needing parental oversight themselves.
    That bodes poorly.

    1. KCFleming writes, ““There aren’t many gators in Nebraska” Their ignorance of the location they traveled to cost them their son. No money can bring him back.”

      Ever been out of your Pleasantville element? Try arguing that rationale to a jury. Go ahead. Make my day. Sheesh.

      1. Steve – DIS prides itself on its controlled environments and it advertises them. When you go to the Magic Kingdom you don’t expect to be hurt or injured. The first time I went to Disneyland and rode on Space Mountain I kept saying to myself “Walt Disney wouldn’t do anything to hurt me” over and over through the whole ride. Of course Walt was dead by then.

  16. As JT and others have indicated, this should be settled quickly, before any complaint is filed. You ask the attorney for the family what they want, you don’t haggle about anything over 25-30 million, and you put this horrible, heartbreaking story to bed. Any parent can feel the horror of this family. Disney is about family fun. However, lurking like this alligator is ISIS. They can inflict a wound that no money will mitigate.

  17. There aren’t many gators in Nebraska, where these folks come from. The parents won’t have contributed too much to the harm by permitting their child to wade in water on a resort beach, even at 9:00PM, without appropriate signage, when the locals testify that it was common knowledge that the lagoon was infested and that the millions of gators in Florida is common knowledge to Floridians. General counsel for Grand Floridian Resort and Spa probably needs to find a new career.

    What’s a two-year old’s monetary value anyway? Only the insurance actuary knows.

  18. First, I myself hope that Disney loses so much money on the lawsuit that they to have to close.
    But then, I do not like Disney.
    I feel terrible for the family. I cannot imagine losing a child that way.

    Nevertheless, I am troubled by this.
    People have been trained to be increasingly ignorant over the last 100 years.
    People largely seem to believe they are not responsible for anything that happens to them.
    They have been trained to expect zero risk were very low risk of harm in everything they do.
    If something does happens to them, someone must be at fault.
    We no longer believe we bear personal responsibility for our own safety, or for members of her family.

    For example, these parents did not seem to ask one simple question:
    Why is no swimming allowed?
    In fact, why was no one else swimming?
    Why do you believe that total grounds that look something like Utopia is actually a Utopia, where no harm comes? Is evil truly suspended on Disney grounds?
    Is no one never robbed? Is no one ever assaulted?
    Did not and Islamic terrorist recently case the joint?
    What does the phrase “When in Rome, do is as the Romans do” mean?

    I quit pretending there were magical lands when I was about five.
    Disney appeals to five-year-olds with that Utopia garbage, but why do grown adult believe it?
    “It’s Disney, it must be safe.” You really believe that? Why?
    Can I have your credit card number and the code on the back?

    A young child is dead for a momentary lapse in a parent’s oversight.
    Every one in Florida knows there are alligators everywhere.
    Most of the rest of the nation that has access to radio and TV and newspapers and internet hear stories about Florida alligators all the time.
    Still, the desire to believe in Utopia is very strong. Strong enough to allow oneself a momentary lapse in parental oversight.

    I hope Disney loses, and loses big.
    But I remain troubled.
    We have become a nation of ignoramuses. and

  19. Disney knew there were alligators in the swamp. Employees mentioned it. It is Disney’s responsibility to protect the patrons from the animals that are known to be there. This is a contained condition that failed. Disney is responsible.

    The only question is do they do the right thing for all and fork over twenty mil or so, or do they mess themselves further in court. There is a compromise that would suit the parents, lawyers, and Disney. If the parents go too high then Disney can look good offering lots but not a greed inspired amount. The parents will look bad. What is the magic number? $20,000,000.

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