In my previous post on this story, I wrote of the recent, horrific death of a 2 year old boy killed in an alligator attack at Walt Disney World in Florida. Specifically, I discussed that Disney had more than adequate reason to know that guests and visitors to their “Polynesian Village” attraction there were at risk of being injured or killed by alligators in a lagoon they maintained on that property.
Now, let’s talk about the legalities of this situation.
In my view as a Massachusetts negligence and injury attorney, Disney is in an extremely precarious legal position in this matter. The reason for this is found in the basic elements of negligence that every first year law student is taught. Those elements are contained in four terms, as follows:
To establish negligence on the part of any defendant in a civil lawsuit, a plaintiff must first establish that the defendant owed a legal duty to the plaintiff, to prevent the type of harm that occurred. Here, that test is satisfied due to the fact that the victim(s) here, had paid to be on Disney’s property as guests, and were lawfully on the property. Thus, what is legally known as “consideration” passed between the parties (money, in this case.) Disney had a legal duty to take reasonable measures to prevent the type of harm that occurred here, i.e., an alligator attack in a lagoon area containing these wild and dangerous animals.
The plaintiff must the establish that the defendant breached that duty. In this case, in my professional opinion as a Boston injury attorney it can be very easily shown that Disney breached that duty in several ways: First, by failing to warn guests and visitors – even trespassers – that alligators were in the lagoon’s water. All news reports so far have indicated that the only warning signs in this particular area were “No Swimming” signs. Any reasonable person would construe a “No Swimming” sign to warn against the risk of drowning – especially with no lifeguard present. There were, apparently, no signs warning of alligators. Next, not only did Disney not provide adequate warning that alligators were in the water, they also apparently took no measures to prevent the alligators from reaching guests at the shore or beach: This could have been easily accomplished through the construction of an underwater fence, which would have prevented the alligators from reaching anyone in the water, near the shore. Next, Disney provided no protection in the form of wildlife management personnel on the site, or “spotters”, who could have watched the water or patrolled the surface of it, to maximize guest safety.
The next legal element that must be satisfied is causation – that is, that the defendant’s breach of its legal duty was the “proximate cause” of the plaintiff’s harm. Here, the necessary nexus between Disney’s failure to warn of alligators, failure to corral them away from the beach or shore, and failure to provide any wildlife management personnel on site, all satisfy this necessary element.
Finally, the plaintiff must demonstrate harm (damages) and that the harm suffered was the type of harm that the defendant had a legal duty to prevent the plaintiff from suffering — and, importantly, that the harm suffered was reasonably foreseeable. The harm in this case – an alligator attack occurring inside a lagoon populated with wild alligators, with no fencing or protective measures taken to protect persons on the property and no specific warnings of alligators posted – was easily foreseeable.
All four legal elements of negligence being satisfied here, in my view the Disney organization is in an extremely precarious legal situation with this horrific event. And the above legal analysis speaks to the purely legal elements only – it doesn’t begin to discuss the indescribable public relations nightmare that would result if a lawsuit is filed by this boy’s parents (as I assume it will be,) and if Disney refused to settle.
Disney will settle this matter quickly, quietly, and for a very large sum of money – though no amount of money will bring back these parents’ son. It is all that the law can do for these parents. But there is a wider benefit that will be realized here: The general public will be made safer because of this tragic accident: The Disney organization will not only take corrective measures to assure that such a tragedy isn’t repeated, but other amusement and theme park operators will, too.
The horrific death of this boy is far too high a price to pay to bring about these necessary changes in corporate behavior. But without the civil justice system being available to people, businesses both large and small would have little incentive to change to make us all safer. Think about that the next time someone tells you that “we need to limit the amount of civil lawsuits filed in this country,” or that “we need tort reform.”