Yesterday, we discussed how the case against Disney in the death of two-year-old Lane Graves seemed to be getting worse for the company by the day with a new controversy over a poster instructing employees to mislead tourists asking about the risk of alligators. Many of us felt that Disney richly deserved to be sued and that such a lawsuit could produce valuable deterrence for Disney and other companies in the future. However, to the surprise of many, Matt and Melissa Graves of Elkhart, Nebraska have announced that they will not sue Disney for the death of their son in the lagoon at the Grand Floridian Resort and Spa at Florida’s Walt Disney World.
This is obviously a very personal decision. I can understand why a family wants to heal and not relive this terrible tragedy. However, in my view, Disney was clearly negligent in the case. The resort had “no swimming signs” but not warning about the alligators in the water.
As I stated earlier, 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 lacking 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.
Disney is now the luckiest place on Earth in dodging this lawsuit, particularly the same week as a new controversy over the company misleading tourists on the risk of alligators. If the company had a modicum of class, it would dispense with its tight-fisted reputation and make a sizable donation to the charity created by the family in the name of their child.
Kudos: Professor Roger Schechter