The recent death of a small child due an alligator attack at a Disney park
is a horrible accident. Many people are also asking questions about Disney’s
This case is a lesson in
premises liability law. The first issue is what duty Disney – as well as any other
entities that owned, operated, or managed the property – owed to
this Nebraska family. The duties that one owes to a trespasser are far
different than those owed to a business invitee. In this case, the family
was what is known as a “business invitee” of Disney. A business
invitee is someone who is invited onto property for a purpose connected
with the business of the owner. This family was apparently staying at
Disney World at its hotel and using the amenities of the hotel. They are
thus pretty clearly business invitees. That includes not only the parents
who paid Disney the necessary fees, but also children who are permitted
to enter the premises with them.
Now that we have established that the family was a business invitee, the
duty Disney owed to business invitees is to use reasonable care to maintain
the property in a reasonably safe condition and to
warn of dangers that Disney
knew or should have known of. That duty to warn is not owed to trespassers, but is placed on those
property owners who invite and benefit from a business invitee’s
presence on the property.
We know some, but not all, of the facts from various media accounts of
the Disney alligator attack. The family was from Nebraska. The lagoon
where this occurred was manmade with beach chairs and other amenities
along the beach, including swimming pools on the beach. The child was
inches into the water when the attack occurred. “No swimming”
signs were posted but they did not mention alligators or provide any other
details as to any other dangers. In addition, there are also lifeguards
present at the beach. Presumably, those lifeguards are familiar with the
lagoon, as would be other Disney employees. Finally, nearly every account
says that alligators are in almost every body of water in Florida, and
it is virtually impossible to keep them out of any body of water.
What we don’t know yet is whether there had been earlier alligator
sightings by Disney. If there were sightings, we don’t know when,
where, or how often they were.
In the large amount of press coverage of this case, most commentators believe
the odds of Disney being liable are 50/50. However, that appears to be
a low estimate.
It is likely that this family would prevail at trial absent some statute
in Florida that specifically exempts landowners of any liability for attacks
by wild animals that they knew or should have known about.
This is why:
This case is going to come down to whether or not Disney had a duty to
warn the family of the danger of an alligator. When examining whether
such a duty existed, you have to look at how obvious the hazard is. There
is no duty to warn at the Grand Canyon that if you get too close to the
edge you will fall off. Yes, that is a danger, but it is an open and obvious danger.
So, the question here is whether the presence of alligators was an open
and obvious danger to this Nebraska family. It is safe to say that the
majority of guests at Walt Disney World have had no experience with gators
in the wild. Conversely, Disney – as a property owner in Florida,
including, particularly, the lagoon where this accident took place –
most likely has extensive information on alligators in Florida and on
its properties. Given the diversity of its customer base, Disney cannot
expect that its customers will know that alligators are present in nearly
every body of water in Florida. This is especially true of a manmade lagoon
within the apparently safe and family-friendly confines of Disney World.
If there were any body of water in Florida that one would expect might
not have alligators, it would be a manmade lagoon at Disney World.
So, did Disney
know or should it have known about the presence of alligators. How can the answer not be, “yes”?
Surely a company of Disney’s stature that has operated a theme park
in Florida for over 40 years knew that gators could be present even if
it took extraordinary efforts to prevent them from being there. Accordingly,
the only logical thing would be to post signs that do not simply say “No
Swimming” – since those signs can be disregarded by someone
who believes they are a good swimmer or closely watching their children.
Instead, given the horrible outcome of an alligator attack, Disney should
have erred on the side of full disclosure to guests, rather than assume
they knew of the prevalence of alligators in Florida.
There are still a couple of loose ends to address:
First, is the child comparative negligent for swimming in the water? A child under 6 in Florida is legally incapable of being negligent.
Second, are the parents responsible for the child being in the water? The child was barely in the water (basically had his toes in it). He wasn’t
“swimming,” which the warning sign prohibited. People often
walk along a beach – with their feet in the water – but refuse
to go swimming. Those are two different activities. Also, the parents
were obviously paying attention as the father saw the attack and attempted
to save his son. Finally, common sense dictates that the parents had no
clue that being close to the water’s edge risked being attacked
by an alligator. The comparative negligence of the parents may be used
to reduce any verdict in this matter, but it is doubtful that a jury will
find these parents solely or primarily at fault. Moreover, Disney World
risks inflaming a jury and damaging its reputation by blaming the parents
for this accident.
Third, did Disney warn guests about the risk of alligators through other
means, including brochures? An owner, such as Disney, satisfies the duties it owes to business invitees,
such as the Nebraska family, by adequately warning the business invitees
of dangers on the property. If a jury were to find that Disney adequately
warned the family of the risk of an alligator attack, then that will be
defense. The warning could come in many forms – brochures, web pages,
instructions given at the front desk, statements by lifeguards, or countless
other means. A jury will have to evaluate any such warning to determine
if it sufficiently made the family aware of the risk of alligators given
what words were used, when the warning was given, how often the warning
was given, and how clear the warning was.
Overall, this Nebraska family has a good case against Disney World for
the death of their child. Ideally, Disney should have had signs warning
of alligators. In the absence of such signs, based on the facts now known
publicly, it is difficult to imagine a jury not finding it liable or finding
that the parents should have known better.