We previously discussed the tragic death of Lane Graves, 2, at a Disney resort after an alligator attack. Things are already pretty bad for the company, but there is yet another twist. A Walt Disney World intern was fired after she posted objected to a sign advising employees to tell guests that they do not know of any alligators in the waters. After an outcry, the company has rehired Shannon Sullivan. The question remains whether such evidence could be introduced to show the company’s alleged continued misrepresentation or concealment of the risks associated with the alligators.
The Orlando Sentinel reported that Sullivan was fired after posting a picture of a sign that told employees to respond to guests (who ask about any alligators): “Not that we know of, but if we see one, we will call pest management to have it removed.”
The whole message reads like a Plaintiff’s lawyer’s dream:
“If a Guest asks if we have gators in the water around Tom Sawyer’s Island (or any bodies of water), the correct and appropriate response is, ‘Not that we know of, but if we see one, we will call Pest Management to have it removed.’ Please do not say we have seen them before. We do not want our Guests to be afraid while walking around Frontierland [part of Disney’s Magic Kingdom]. As a reminder, this is a serious matter. Please do not make jokes with our guests about this.”
Sullivan was fired after she objected to the sign. She lost her job as an intern in Disney World’s College Program. After the outcry, Disney denied that the sign was approved by the company and Sullivan was rehired.
Part of the case against Disney will be its failure to inform guests of the risk of alligators. This is a post-accident event but it is not clear when the poster was put up. Disney might claim that the poster is part of a subsequent or post remedial repair under Rule 407:
Rule 407. Subsequent Remedial Measures
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
a defect in a product or its design; or
a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
In addition there is the question of materiality and prejudice since the company is denying that it approved the sign. Indeed, the sign is incredibly moronic for a company facing a massive potential lawsuit.
Yet, these were reportedly employees or contractors under Disney’s direction or control. Moreover, the plaintiffs would argue that Disney either explicitly or implicitly downplayed the the risk. The controversy with Sullivan could be viewed as evidence of ongoing problems within Disney regarding the risks. It could present an interesting issue first in deposition and later at trial.