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. Hollywood stars paid to smoke
    By Alexandra Heilbron on September 26, 2008 | 38 Comments

    Ronald Reagon Tobacco adHollywood’s Golden Age stars were paid to promote smoking, according to a new study. A-list actors such as Clark Gable, Joan Crawford, Gary Cooper, Spencer Tracy and John Wayne received huge amounts of money through their film studios, according to researchers at the University of California at San Francisco. A key document uncovered by the researchers was a list of payments for a single year in the late 1930s, detailing how much stars were paid by American Tobacco, the makers of Lucky Strike. The document shows movie stars who endorsed Lucky Strikes cigarettes in 1937 were paid $218,750, the equivalent of $3 million in today’s economy. In total, almost 200 stars took part in cigarette endorsements, even though it was already known that tobacco use could lead to health problems. James Cagney, who didn’t give in to pressure to smoke, was still affected, commenting in his autobiography about his dismay at the loss of co-star Ann Sheridan at 51 of cancer of the esophagus and liver. Other stars who died of smoking-related diseases include Humphrey Bogart (throat cancer, age 57), Spencer Tracy (heart attack following lung congestion at 67), John Wayne (lung & stomach cancer at 72), Clark Gable (coronary thrombosis, 59), Gary Cooper (prostate cancer, 60) and Betty Grable (lung cancer, 57).

  2. Vocal Canine – just finished the article in Wikipedia on Bogart. There is NOTHING about his being paid by any tobacco company to smoke in movies. I used to teach History of Film and most of Bogart’s films were made during the Studio Days. That meant you were under a contract to a studio, they selected the films you would be in and the role, you had not choice. You were paid a yearly salary by the studio.

  3. Amount of settlement depends entirely on timing of discovery. Last thing Disney wants it to disclose all the records it has on gators problems. I would calculate settlement according to their loss of future income should discovery hit the fan.

    1. Gene – it is not going to help if they see the Disney employee pushing a gater back into the pool who was trying to catch a ride on Splash Mountain.

  4. Paul Schulte: There was an end to the smokers back in the old days. They died of lung disease, heart failure, cancer and died young. Look up the Wikipedia columns on Bogard and Lauren Bacall and many others. And, they were paid by tobacco companies to promote the smoke. Let it slide right? Only dont let your grandkids smoke. Or vape.

  5. Boycott Disney Lands anywhere they are located. But feed the alligators.

  6. “Can a reasonable person foresee an injury?” Sounds familiar, dear Disney?

  7. I predict that in a few months a Disney memo will be leaked with old calculations how cheaper it is to pay damages per body bag, then prevent injury. Just like that gm car tanks fires memo.

    There would have to be an army of morons working there not to see it coming. I don,t think it is the case. There was cold calculation to actively keep guest in ignorance.

    1. Gene – the Daily Mail has an article today (including video) showing the gator problem at the park. It appears that tourists have been feeding the gators in the Magic Kingdom and they have no fear of humans. They seem to be infesting all the water at the Happiest Place in the World.

  8. Incredibly horrible tragedy. Not just the loss of your child, but having to see it and then not being able to prevent it. An alligators downward bite is one of the strongest in the animal kingdom. Hard to imagine a worse vacation/Father’s Day.

    Liability – absolutely totally on Disney. Not surprised that there are corporate apologists here. They gladly accept all profits, but whine like babies and rarely accept responsibility when things go wrong. The reality is that if Disney did not have a closed water system and knew alligators could possibly be present, they have virtually no defense. Disney has no problem telling visitors that the parking lots are theirs and thus one must pay to park – Disney also has no problem charging in excess of a $100 a person to enter their gated premises. The likely have signs saying not to bring other soda’s or food onto their premises – so they can sell more. Maybe other types of signs regarding how people can act, etc……. but no signs for alligators? How stupid and cheap is that?

    Responsibility – Imagine the safety engineer(s)/loss control specialist(s) will rightly lose their jobs. Even the corporate Risk Manager might not be safe. This mistake is safety 101 that only a Chamber of Commerce stooge or similar would describe as being the fault of the parents. The insurance companies also deserve a flogging – the Umbrella underwriter likely too could soon be jobless. There is no reason customers not to have thought themselves safe inside Disney gates. Am shocked to think Disney did not have a closed water system to almost totally eliminate the risk. That they might have known alligators were present and did nothing to warn and protect, shows a level of ineptness/Trumpness that is almost beyond belief – but seemingly worthy of defense by some?

    Payment – Not going to be as easy as some believe to quickly pay off the claim. Don’t know Disney’s current insurance program, but Disney likely only retains the first $2 million or so. Then maybe a primary insurance carrier above their SIR (Self Insured Retention). Then Umbrella and excess carriers I would guess to be at least $100 million. And maybe $200 million to $500 million. Excess insurance would be fairly inexpensive to secure. The primary insurance carrier (maybe to $5 million) would likely immediately offer their limits up to avoid the additional defense costs. Then they are left with the Umbrella/Excess carrier (probably the first excess limit to at least $25 million – maybe $50 million) to pay the remainder and pay defense costs. If that company tries to drag this out (and one three letter insurance company has a reputation for that), then they’ll likely have to end up adding significant punitive damages

    Customers are invitees and due the highest standard of care. The garbage displayed here that a tourist from Nebraska should be intimately familiar with Disney and Florida risks, while the company doing business there and booking profits has little to no responsibility is insane and why this country has a perverted privatized profits but socialized losses philosophy. Suspect a final number payout between $15 and $20 million…….and no this will never see a courtroom. A jury might assign a $100+ million payment. Which of course business friendly judges would severely knock down later on – but Disney can’t afford the interim bad press that this trial would offer.

    Happy Father’s Day to all – even the insane ones defensing Disney

  9. Those “wild animals” are not in the possession of Disney. Disney is controlled by the animals. But Disney could kill all the animals. Walt Disney in his time was one of those public smokers who by is constant smoking on screen encouraged millions of children to smoke. Millions are now dead from cancer, heart disease and bitchy wives who smoked. The wives were encouraged by Lauren Bacall to smoke and by Doris Day to bitch.

    1. Lars Vegan – Walt Disney was very careful not to be shown smoking on screen, so I am not sure where you get this idea from, probably Saving Mr. Banks. Doris Day was the perpetual virgin. In fact, one director said he had known Doris so long, he knew her before she was a virgin. Lauren Bacall was not selling cigarettes, she was selling herself. She was famous for her husky voice and trim lines. She was married to Bogart.

      When we grew up with these people, everybody smoked. We had plenty of real example around us, parents, teachers, business leaders, doctors, older siblings of friends, etc. There were no end of people smoking.

  10. Alligators have been on the land, in the water and in the swamps there for hundreds of thousands of years. The Disneys are newcomers and need to go.

  11. Disney is liable, no doubt. What a tragic story for what is suppose to be the happiest place on earth. I have stayed there a few times and I would never think that Disney would allow alligators on their property. Obviously, they did not make sure their guests safe if they killed 5 alligators
    in one day. They needed to have their resort secured.

  12. I’m not going to argue Tort Law because that is what lawyers and judges create out of precedent and the very odd rules that these two groups have created. I really can’t see how any wild Animal could be “owned” by any private entity. Maybe a Federal or State entity could found to “own” the flora and fauna via a bit of clever legal legerdemain. Anything seems possible in a tort court. People seem incredibly willing to toss the money at a tragedy if some large impersonal institution is involved.

    I have no doubt that is particular case is an ambulance chaser’s wet dream. The death of a small child, the horror of the adults having to witness it, and the huge, hulking, callous transnational corporation at the heart of the case scream eye watering settlement. No doubt the Mouse House will toss a lot of money at this just to have it go away.

    But I am disturbed by certain points, there was signage, specific signage not to swim in the water. What part of “no” did these people not get? Yes, people do not pay these signs much attention but is that really a valid excuse for such bad behavior? Shouldn’t good citizenship require one to be mindful of such signs and take their warnings to heart? Do we really require signs to spell out the dangers? Instead of “Do not feed the animals” do we really need “Do not feed the animals because the damn things are likely to rip your fingers off your hands or worse?” I get how tort law requires such things, but tort law requires manufacturers of metal ladders to place a sticker warning DIY weekend commandos not use those ladders around electricity or electrical wires. Are we really that ignorant? Someone in the legal department of those ladder makers thinks so.

    Does not a visitor have at least some responsibility to find out what the status is of the place he or she is visiting? Or we allowed to just blunder around foolishly and start sticking any odd large animal with a stick and then sue when it rends us limb from limb? I understand even the NPS was required to put up big honking sign that the bears traipsing around the grounds were in no way related to Yogi and Boo-Boo and it was an incredibly bad idea to feed them from one’s auto, but– seriously? Does the words big, wild animal not light up people’s cortex to be on their guard? If you are from flat, dry prairie Nebraska do you not have some requirement of common sense due diligence not to find out about the hazards in semi-tropical wetland Florida? Would not a person from Florida have some responsibility to do a little research on the topic of Bisons before wandering into a herd of the beasts with their toddler on the Nebraska plains?

    Honestly there is not month that does not go by in the news that some poor sap ends up either badly mauled of made in to delicious repast by Florida Gaters. Some sort of common sense should have lit up in these Nebraskan’s minds when the set of water, warning sign, and Florida made there appearance in their line of view. Legally speaking, the warning should have been stronger, at least that is what I am reading here. Me, if I ran the place there would be huge signs at check in with a nice big picture of a real life toothy Alligator saying “Howdy neighbor” and a warning that these critters are not only chock-a-block all over the property near the water but chock-a-block near the water all over Florida; “have a pleasant stay in ‘The Happiest Place on Earth’, no refunds allowed” But the Mouse House did not do that because, reasons. Perhaps some bean counter decided that the bad PR would too adversely affect the corporate bottom line. That bet did not work out as now their is the bad PR and a hefty settlement to come. Such is the world.

    1. James Leseke – those of us who grew up in Montana know to stay away from bears and bison. However, I have seen park rangers have to rescue Floridians from getting to close to both. And bison usually kill a tourist a year, either is Yellowstone or North Dakota. Problem with bison is the damn things just stand there until you get way too close and then they come at you like a steam engine. The bears are in the north part of the park these days.

  13. Some of you who are defending Disney make me laugh. They are going to pay out the rear end, trust me on this one. They will never want this to go to court, not in a million years. This family is going to be millionaires but it won’t matter, they lost something way more valuable than money. Something irreplaceable and as parents they must feel like they let the boy down, that they didn’t protect him from harm. Imagine the look on the boys face as he realized what was happening to him and while he watched his dad try to save him and fail. I know if I was that father, I would be haunted for the rest of my life.

    1. Anthony M – I expect to see a divorce in the future. They will wait until after the money comes in. I am not sure how you live with this. 🙁

    2. Anthony, you said it, bro. Imagine the father leaping into the water and trying to pry an alligator’s mouth open to free his son as he’s being pulled under. Brave and self-sacrificing dad who loved his son.

  14. This is such a tragedy -sadly, no one is to blame but if it was known to be a danger -the resort SHOULD have forewarned their guests and if they did not when they should have – they have a responsibility and did not do it.!

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