How Culpable is Disney?
How culpable is Disney for the tragic death of a two year-old theme park guest?
People keep asking me my opinion on whether Disney will be held responsible or “liable” for the tragic death of a two year-old child on Disney property, and without having internal facts, my overall answer would be Highly Likely. The reasons for this opinion stem from an analysis of Florida Premise Liability law in comparison with the publicly known facts of the death.
What we all know from news reports and social media compilation is that a young child tragically lost his life this past week due to an alligator attack at Disney’s Grand Floridian Resort. This child was 2 years old and on vacation with his family from Nebraska. While enjoying the beauty that is Disney and a Disney sponsored movie night, the child, at approximately 9:30pm, stood in waters about one foot in depth in a man-made lake. An area commonly referred to as the Disney “beach” area. This lake and beach area were all created by Disney for enjoyment, aesthetics and marketing. In fact, Disney’s online marketing campaign features pictures of this very same beach area with a lady relaxing in the water (see below); which in fact let’s patrons (invitees) assume this area is safe and open to the public. There were of course some “no swimming” signs by this body of water, BUT there were no signs, as reported , that stated “warning, alligators might be present”, “swim at your own risk, alligators might be present” or anything in that realm. Therefore, a simple “no swimming” sign appears to be a rather harmless statement, not a warning; to be fair, this family was not “swimming”, they got their feet wet in twelve inches of water. This same man-made beachfront, near a lawn where Disney routinely hosts movies in the park and encourages families to gather and spend quality time together, abuts a body of water that connects to canals directly draining from surrounding swamps/wetlands…in essence, alligator habitat. Disney frequently traps and removes gators from their properties, yet it appears there was no signage or proper warning that a predator might lurk in waters used for guest entertainment.
As the mother of a 15 month-old, I cannot remotely fathom the grief this family is experiencing and must endure for the rest of their lives. The father and mother both fought to rescue their child as their 4-year-old looked on. This horrific event will haunt this family forever, and no monetary compensation will resolve that. There’s no doubt everyone is sorry for what happened to that two year-old boy and his family. If one can suspend emotion (albeit very difficult at this time) and evaluate this incident objectively and within the framework of Florida law, Disney is in a position where they must rapidly accept responsibility for their negligence and start working through the process of valuing this very valid claim. I am calling it a claim because I cannot imagine Disney wanting this case filed in court. In all likelihood, they will press for a confidential settlement…quickly and without a court case and the negative publicity that would accompany it. I am not anti-Disney nor pro-Disney; just looking at it through the eyes of a Personal Injury attorney, mother and business owner. This ultimately is about a business that failed to properly warn it’s patrons of a threat that cost someone their life and inflicted untold long term emotional damage to others. This is a tragedy that Disney will be paying for, but hopefully will ensure that this never happens again within their domain.
Florida Negligence/Premise liability law is rather complex and has multiple layers of law that affect this loss. I am analyzing the Premise Liability Law, Attractive Nuisance Doctrine, Florida Wrongful Death Statute, and Negligent Infliction of Emotional Distress in this blog as it pertains to the Disney tragedy that happened last Wednesday night.
What is Florida Premise Liability?
In Florida there are different classifications for people on business property. Depending on the classification, there are different duties an owner owes to that person. Without making this breakdown a lengthy, boring diatribe on the legal process, it is fairly straight forward that this family was an “invitee” of Disney. They were staying at the resort, therefore a higher duty is owed to them. Invitees are granted the most legal protection under Florida law for injuries on property. A property owner has the highest duty of protection and care to those he or she invites upon the property for either personal or business reasons. An owner must maintain the premises in a “reasonably safe condition” and if there are places which are not reasonably safe, then the owner must protect an Invitee by “warning them of these known dangers” and correcting the dangers in a reasonably expedient manner. Here, Disney is well aware of the dangers of having a body of water presented as a beach for public use. Granted, there are “no swimming” signs, but events are commonly held on the beach, lawn and surrounding areas. This family was NOT swimming, they were standing in a body of water; presented to patrons as a beach. As noted above, marketing photos for this resort include a picture of this beach with a woman wading in the water. This further proves that Disney presented this “beach” as SAFE.
What Is The Attractive Nuisance Doctrine?
The attractive nuisance doctrine is a body of law established by both Florida statutes and Florida court opinions. This doctrine applies to when a child is a victim and the special legal duties a property owner has for trespassing children. Under the Florida Attractive Nuisance Doctrine, liability is imposed upon the property owner if there was something on the property that could be seen as attracting or enticing to a child’s curiosity. Things like swimming pools and hot tubs are obvious “attractive nuisances” in Florida. I am not saying this doctrine fully applies to the case at hand, but it is a suitable argument that a “beach” is an attractive nuisance in which children – as well as adults – would assume is safe to play in. When you go to any Florida Beach, there are large signs that warn of “possible sharks” and the “danger” of swimming; and frankly sharks at a beach is a pretty obvious scenario, yet there is still suitable warning. Disney lacked any similar form of proper notice and/or warning for this highly trafficked, and most certainly “attractive” beach.
What is Wrongful Death?
Wrongful Death in Florida is established by both Florida statutes and Florida court opinions. Overall, in order to file suit for wrongful death; one must prove negligence on another party that caused the death of a loved one. This involves a showing of negligence, a four-step test that requires proof of a duty, breach of duty, damages, and causation. The statute is long and exhaustive on all available remedies, but in focusing on the case at hand; parents have rights to damages to include but not limited to, pain and suffering, loss of consortium, mental anguish, and more. These damages are proved through experts, but in my opinion, there will be a high value on the loss of a child without the need for numerous experts.
What is Negligent Infliction of Emotional Distress?
Florida law does allow for the recovery of compensation for the emotional distress an accident victim suffers and/or the victim’s family suffers; in this case the parents and sibling. According to the Florida Supreme Court, the elements of a negligent infliction of emotional distress claim include the need for a physical impact and (1) the plaintiff must suffer a physical injury;(2) the plaintiff’s physical injury must be caused by the psychological trauma;(3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have a close personal relationship to the directly injured person.
This claim has a ton of moving parts and without doing further discovery on Disney regarding their proper notice and other incidents reported around that “beach” or lawn; I would assume this settlement will be out of court, quiet and confidential. If Disney were to claim no liability in this incident, it would invite a deluge of negative publicity and public ill will. It is hard to imagine Disney further jeopardizing their (now temporarily tarnished) image with a highly publicized trial arguing liability for the death of a two year-old child, by an alligator, in waters on their property. They improperly warned their patrons and should be held accountable for that negligence.