Last week a young boy lost his life at Disney World to an alligator. Here in Florida we tend to know alligators are a clear and present danger. But how common is this? And what legal obligations do place like Disney have to protect us?
In Florida we have as many as a dozen or so alligator incidents in a year, but very few deaths. Of course there are an endless number of places we all go to where alligators are a concern. But the thing is the same laws that apply to Disney and this tragedy involving a two-year old also apply to many other places and situations you or a loved one may find yourself involved in. It doesn’t have to be an alligator. It could be a work place accident, car, boat or airplane accident, exposure to hazardous substances, or even medical negligence or malpractice.
The legal claim is for “wrongful death.” Wrongful death is a legal term that describes a situation where negligence by one party leads to the death of another. So in this context it’s based on the legal theory that if Disney had knowledge or reasonably should have had knowledge of a danger it's guests are not likely to be aware of, then Disney had a legal duty to warn guest and are essentially negligent if they didn’t. Wrongful death is a civil cause meaning, if you prevail, you can be awarded damages (verses a criminal cause for which you would be seeking punishment). The legal elements you need to prove to prevail in a wrongful death case vary from state to state, but are generally that a duty of care existed, that there was a breach of that duty of care, and that the breach caused the death.
Resorts and certain other types of facilities may be held to a higher duty of care in this context because we tend to choose one resort over another specifically because we expect to be safe so there’s an implied representation by the hotel that their premises are safe. Courts will generally consider factual issues regarding the expectations of guests based upon services and practices typically provided by a particular class of resort and which a guest would, thus reasonably expect a resort to provide. That applies to any places within the resort where guests are invited or would reasonably be expected to go and it includes a duty to periodically inspect for dangers. But that doesn’t mean guests can abandon whatever responsibility that themselves have to be careful. Under this theory, resorts and other facilities are only legally required to warn guests of dangers the facility did or should have reasonably foreseen, but which a guest would not readily observe.
Damages for wrongful death often include compensation for a loved one's pain and suffering as well as loss of enjoyment of life before death. Additionally, any financial loss to the loved one's survivors may also be included in the damages. The actual damage amounts vary and can be complicated as age, life expectancy, earnings capacity and other factors may be involved. Here in Florida, the law can be found in chapter 768 of the Florida Statutes.
If Disney allowed this case to go to trial, we might expect to see arguments along of the lines of everyone knows there are alligators in Florida so there is no hidden danger or duty of care. In the alternative, if the duty of care is so obvious, the argument might be that Disney met the duty of care, in this case by posting no swimming signs and whatever other precautions may have been taken. And we might see Disney argue that their failure we’re not the sole and direct causation for this child’s death. For example, they might argue (regardless of merit) that the boy’s parents should have keep a closer eye on a two-year old playing in the water at dusk.
In this particular case, I can’t imagine it would be difficult for the plaintiffs to show that Disney had knowledge of this danger. Its already come out that guest reported to them that alligators have gone after kids there before. And it appears that Disney routinely removes alligators from these waters.
The problem for Disney is they know their guests come from all over the world so they need to anticipate that. Its entirely reasonable that a family from Nebraska would not know much about alligators.
Moreover, everything in Disney is man-made and animated, they appear to control everything in the environment. And it appears that Disney actually encouraged folks to gather around the water by providing chairs and activities using the beach and water front. And public sympathy, as well as any jury, will likely see Disney as a deep pocket and sympathize with the family who, frankly could be any of us.
The question will, under these circumstances, be are "no swimming” signs sufficient to warn guest of this danger. And that answer is likely to be no. After all, this child wasn't swimming. When it comes to warning signs in lawsuits of this nature, the number and placement and wording of signs is key. For insight into what might be deemed reasonable precaution, we can also look to how other organizations handle this issue. The Florida Department of Environmental Protection, for example, uses specific “alligator” warning signs in many facilities.
We can look to a similar 2009 case out of South Carolina on a golf course where a man lost his arm to an alligator. And won the lawsuit. Obviously Disney has a lot at stake in terms of preserving its reputation as a caring, family-friendly place. On the other side we have a family who would likely tell you that no sum of money will bring back their son and I'd guess wants to be sure no family has to go through this again. So there's no doubt we’re going to see a big, albeit confidential, settlement offer before a suit is ever filed, with clear statements about changes Disney will make to insure this never happens again.