Liability Questions Arise After Florida Alligator Attack

By Denise Johnson | June 20, 2016

After the death of a Nebraska toddler killed by an alligator at Florida’s Walt Disney World Resort last week, there are questions of who is at fault in the incident.

The parents of Lane Graves said they are overwhelmed by the support they received since his death. Matt and Melissa Graves of Omaha, Neb., issued a statement this weekend in connection with their son’s death.

“Melissa and I continue to deal with the loss of our beloved boy, Lane, and are overwhelmed with the support and love we have received from family and friends in our community as well as from around the country,” the family said. “We understand the public’s interest, but as we move forward this weekend, we ask for and appreciate the privacy we need to lay our son to rest. Neither Melissa, myself or anyone from our family will be speaking publicly; we simply cannot at this time.”

Sara Brady, who serves as a spokeswoman for the family, declined to comment on when the funeral has been scheduled.

An alligator described as being as long as 7 feet snatched the 2-year-old as he waded in shallow water in a lake at a Disney hotel on June 14. The boy’s remains were found the following day.

An autopsy showed that he died from drowning and traumatic injuries, according to the Orlando medical examiner.

The Florida Fish and Wildlife Conservation Commission estimates there are about 1.3 million alligators in Florida. They live in all 67 counties of the state and are a protected species. In the U.S., they can be found in Oklahoma, Texas and from North Carolina to Florida.

The Statewide Nuisance Alligator Program (SNAP), administered by the FWC’s Division of Hunting and Game Management, addresses alligator-related complaints. In 2015, SNAP received 13,962 nuisance alligator complaints which resulted in the removal of 7,513 nuisance alligators.

According to a Fox News report last week, five alligators were killed during the search for the missing boy. SNAP’s website states that it is difficult to relocate alligators since they often try to return to their capture site.

Laurie Sherwood, a San Francisco-based partner with Walsworth, said there are a few theories of liability to hash out if this becomes a litigated matter, including negligence and premises liability. She explained that Disney’s duty to warn resort guests about the alligators would be an issue and would turn on the specific facts of the case, including Disney’s knowledge and the steps it took, the likelihood or foreseeability of such an occurrence and whether there was any other information provided to guests warning that alligators are present on the property and in the lakes.

The beach, located at Disney’s Grand Floridian Resort and Spa across a lake from the Magic Kingdom, had “no swimming” signs posted but no warning about alligators.

Last week, Disney announced it would add alligator warning signs to all of its beach resorts. The resort’s beaches remain closed.

According to both Sherwood and Steve Jaffe, a managing partner with the Fort Lauderdale-based firm of Farmer Jaffe, the additional warning signs would not impact a case against Disney if it were go to trial. That’s because in several states, including California and Florida, adding the signs after an incident would be considered a subsequent remedial action or measure that cannot be used to establish liability at trial.

Jaffe, whose firm handles plaintiff personal injury and class action lawsuits, said that resort guests have an expectation that the hotel and its surroundings are reasonably safe.

While a Florida resident likely knows not to go into a lake at night, the same isn’t true for out of state visitors like the Graves, he said. Because Disney created the lakes and has knowledge of the alligators being present, he said that is sufficient to prove liability.

“They don’t have an obligation to make the place 100 percent safe, just reasonably safe,” Jaffe explained.

The child, just two years old, cannot be assessed negligence and any claim of negligent supervision against the parents would be shaky at best, given they were just 5-10 feet away from where the child was taken, Jaffe explained.

Disney does have defenses, said Sherwood. First, this is a rare occurrence which impacts any claim of foreseeability, she said, noting the last incident happened 30 years ago. Second, she cited the fact that alligators are indigenous to Florida.

Jaffe said the fact there was a prior attack, even though it occurred a few decades ago, could be enough to establish liability.

Given its high profile, both attorneys suggested that it was unlikely the case would go to trial.

The Associated Press contributed to this article.

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