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. Wow, to go where “Dreams Come True” and have a nightmare as reality.
    Only gonna need one bong hit to think about that one.

  2. One more thought on E Long dong……….stupid people don’t know why they are stupid……..unbelievable comments………

  3. On Elton Long dong’s comments……….what an ass………………

  4. My heart goes out to that family. A horrible tragedy. Money won’t heal their anguish.

    I think if Mr. Longdong defended Disney in court he might succeed in doubling or tripling the amount of money recovered by the family.

    Attractive nuisance: what Donald Trump calls his ex-wife.

    Disney could have won the war on alligators if the company president had just called them “swamp terrorists” instead of calling them criminal alligators.

  5. Thank you for posting that, Steve. That was beautiful and fun. I especially liked the swing dancing and the cute little ballerinas.

  6. What there is is …….. is too many people on this planet ……. everyone dies from something ….. many peopled are offed by the US military ( not my proxies but maybe yours ) …. who compensates them

  7. Maybe Disney needs to get away from the Gator territory. They could set up in downtown Miami on dry land. Or by the gay club in Orlando– no gators would go near. Indeed, all tourist companies need to get out of FL. The gators pose too much a threat to life and limb. The Miami Dolphins need to leave too. If a jury gives a big judgment to the lame parents then it will send a message to Disney: go back to California. We don’t need no Disneys down here. A big jury judgment should be enough to expel them.
    In the meantime: drink Gator Aid.

  8. Oh dear God…I freakin haaaate gators and have to live with that demon in my mind. All I can say is their population was under control and the bleeding hearts prevented hunting or euthanizing. Florida has to make up its mind….is it the vacation paradise it touts or a hell pit of jihad and gators? I for one want a new pocketbook and gun control. God help this poor little family. My heart goes out to them. I am so happy that when my child was small we could not afford Grand Floridian and stayed in Kissimee instead, but then again, who knows. The Floridians take this all a little too casually IMO. Love the comment posted by Natacha…so spot on! I wish there was a reply button and wish gators were again an endangered species. They will prolly outlive us all. IDK how people can live there.

  9. The burden falls on Disney who is providing the tourist attraction
    to the public. Part of that is to provide a safe environment which
    includes warning signs about alligators. How much would the signs
    and the labor to put them up have cost Disney?

    A lot less than what it will cost them now.

    The precautions should have been in place long before a trial and error involving the public happened. To expect the parents, much less a toddler to decipher what is in a lagoon at a tourist attraction is asking too much.

    This is like putting a child and a tiger out in the backyard with a sign that reads: “Keep Off The Grass” Is this really the best protection that a multi-billion dollar business could have provided?
    A horrific, needless death as a result.

    Children, especially toddlers and babies are defenseless
    and rely on their parents and society to protect them.

    Disney denied the parents any warning that their defenseless child
    was in immediate danger.

    Pathetic, Disney

    The situation presented in this case would have failed all day long and will continue to fail until Disney execs take a break from counting their money and recognize what they just did to a child that they specifically targeted and drew in through their child-friendly advertisements.

  10. Settling out of court would be less costly than defending a lawsuit for Disney. If they fight it they will look like heartless &%$#@. Better to settle, be contrite and make amends, and work to find a solution to the gators (more accurate signage, staying on top of removal).

  11. Paul,
    After we moved away from Tempe, it took me awhile to relax about putting our shoes on. Those little bark scorpions were nasty!

  12. This probably happens a lot to people traveling in a different state. We found out what the yellow flags are for on the beaches in Maui. And my cousin on the gulf had to tell a camper that there were 10,000 gators where he camped…some small and some BIG, but a lot of them…he moved.
    Some places need to have more warning signs for people new to the area, especially vacation spots.

    1. John – we have scorpions, gila monsters, dust devils and Valley fever that we have to warn new comers about. Of course there are the rattle snakes, too. Black widow spiders, brown recluse spiders, etc. You learn to shake your shoes out in the morning before you put them on.

  13. I am appalled at this tragedy, and the reporting of this. The media says that the official euthanized five gators! We euthanize pets, NOT alligators. We kill gators. That the people in FL seem to think that gators are pets is bizarre and incredible. I also read that there are over 2 million alligators, which is 1.5 million gators too many. If we could kill all the wolves in the lower 48, which was and is wrong, there is no rational reason to not cull the numbers of gators to a less massive number and make more areas of our habitation far safer.

    1. randyjet – for some bizarre reason gators are considered a threatened species. So I guess people leave them alone. Easier to lose a kid or a dog to them than to be fined by the feds.

  14. The Deliberations after the one week trial:

    Juror Dave: Well I can see how the plaintiffs lost their only child to a gator at Disneyland and should get some compensation but why from Disney?
    Juror Peet: Yeah, but why did they let their kid in the water?
    Juror Betty: Yeah, like they are from Nebraska but they said on cross examination they have tv in Nebraska and knew about gators in Florida. And indeed saw a sign right up the road for a Gator Crossing.
    Juror Wanda: Well, I do not see that anyone is responsible for a gator who eats some person in the water. This was not in some indoor pool. I got a gator in our neighborhood named George and I won’t go near him. I guess its kinda like having an Indian tribe out in the woods in Nebraska.
    Juror Tim: I vote for the defendants and say let the folks go back to Nebraska and not take money out of the Disney treasury. We got folks right here in our families who work there.
    Juror Peet: I would feel different if the kid got electrocuted or something.

    And so it went for about ten more minutes.

    1. Elton – the signs said ‘No Swimming’ which usually indicates no lifeguard. The boy was not swimming and was in the control of the father so that he could try to snatch the child back from the gator. He was not as strong as the gator.
      What idiot puts a nice white sand beach with deck chairs out where there are gators? This is not the Running of the Bulls at Pamploma. It is an attractive nuisance.

  15. One owns land up to the water’s edge when the land is on the ocean or a bay. The kid was off the beaten path so to speak. Not on lands end, not on Disney property. All the world is a stage and all the world now knows about gators in the water in Florida. Nebraska is not isolated from the world.
    The gator acted on his/her own. There was no direction or control over the wild animal living in the wild by Disney.
    Can Disney now go kill all the gators in Florida?
    A message goes out to all: keep your brats out of the water. There are gators in VA, NC, SC, GA, FL, AL, MS, LA, TX. if you have questions get a Gator Aid. The world map will tell you where they are. While you are at it get one of Muslims. Send it to Trump.
    Next they will be saying that this was a gay gator. Jeso.

    1. KC Fleming – we lose several tourists every year at the Grand Canyon. Usually because they wanted to step back just a little bit more.

  16. “…but the fact that Disney even created a beach or lounge area near a fresh water lagoon that they actually knew contained alligators

    This exists in many areas across Florida; at homes, parks, golf courses, etc..
    This past year I was at a “lakeside” museum which had a beautiful “beach.” No signs. But alligators were there, nevertheless.
    I know people who grew up in FLA. They learned from a young age to ask about alligators when approaching any body of water.

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