On a recent episode of All Things Legal, the team considered the legal ramifications of the unfortunate alligator attack at Disney World in Orlando, Florida.

The Details of the Alligator Attack

On Tuesday, June 14th, a Nebraska couple staying at the Disney Grand Floridian Resort and Spa in Orlando took their two small children—a two-year-old son and four-year-old daughter—down to the Seven Seas Lagoon, a man-made lake adjacent to the resort.

At around 9 PM, the boy was wandering along the edge of the lagoon when an alligator grabbed the boy and dragged him into the water. Witnesses described the alligator as being about 4 to 7 feet long.

According to Orange County Sheriff Jerry L. Demings, the boy’s father and attempted to wrestle his son away from the alligator, but the reptile slipped away and disappeared into the lake. The boy’s intact body was recovered by authorities at 1:30 PM the next day. He was found 15 feet from where he was taken, in about 6 feet of water. An autopsy indicated that the boy died due to drowning and traumatic injuries.

While there are signs posted at the lake stating that swimming is not allowed, none of the signage indicated that alligators are present in the lake. While investigators were searching for the boy’s body, five alligators were found, all of which were removed and euthanized.

What is Disney’s Legal Liability?

Craig Ashton started his legal analysis by outlining the incredible rarity of alligator attacks in the United States. According to the Florida Fish and Wildlife Conservation Commission, between 1948 and 2016, there have been 257 alligator attacks, with an average of 3.8 per year. 23 of the 257 attack victims died, with a mortality rate of 8.9%. 8 of those who died were under the age of 16.

Craig put this into contrast by looking at other causes of death in the United States: “32,000 people died last year from gunshot wounds… [Approximately 32,500 people] die in car accidents each year… [23] people in 68 years from alligator attacks. You have a 1 in 2.4 million chance of getting attacked by an alligator.

“So the perspective we look at this from is, first of all, if I’ve got a tiger in my backyard… bad idea. But if you see a tiger in my backyard, you can’t hop the fence and wrestle with the tiger and get yourself killed and hold me legally responsible for it, because it’s an obvious danger.

“Basically, you can’t encounter a danger that’s obvious, and then hold somebody responsible for it. You’ve got to use common sense. So the idea becomes, whether or not guests from Nebraska—probably have no experience at all with alligators, right?—have any idea when they’re at Disney World, in a very tame environment meant for kids, [that there is a risk of being attacked by alligators]. And then all they had on the lagoon [to warn of the risks presented by the lagoon were signs saying] ‘No Swimming’.

“So the law says, look, in regards to the law of negligence, you have to use reasonable care. So if there’s a risk, you need to use reasonable accommodations to warn of the risk. So now looking at these statistics, if it’s 1 in 2.4 million, is there enough of a risk where you have to say, ‘Danger: Alligator,’ you know? ‘Beware of Alligator.’ Because this has never happened before… The idea is, is whether or not Disney World had a duty, based upon the risk, which is 257 unprovoked attacks in 68 years in all of Florida—never happened at Disney World—whether or not they owed a duty [to post a sign saying], “Do Not Get in Lagoon: Alligator,” versus “No Swimming.”

Additional Evidence to Consider

Before we get to what the team’s response was to Craig’s question, three things have to be pointed out. First of all, while the odds of being attacked by an alligator in Florida are rather remote—1 in 2.4 million—the odds of, say, dying in a plane crash are even more remote: the average American has a 1 in 11 million chance of dying in a commercial plane crash.

Secondly, on the day that this episode of All Things Legal was broadcast, the Associated Press published a story about a man who was attacked by an alligator at the Walt Disney World Fort Wilderness Resort and Campground in 1986. The man, who was then an 8 year old child, was feeding ducks in a pond when an alligator knocked him down, grabbed him by the leg, and started dragging him into the water. His 10 year old brother started hitting the alligator, while his 12 year old sister grabbed him under the arms and tried to free him. The alligator ultimately released him, but the boy had to be hospitalized for a week.

Personal photo of the 1986 attack victim. Source: WBZ-TV

Personal photo of the 1986 attack victim. Source: WBZ-TV

A brief article published in the Orlando Sentinel in 1988 indicates that the boy’s parents sued Walt Disney World. According to the victim of that attack, he does not know what the outcome of the case was.

Lastly, a woman who was staying at the Floridian Resort publicly posted photos on Facebook showing her son standing in the water on the edge of the lagoon, a half hour before the attack happened. The woman, who expressed sympathy for the victim’s parents, indicated that nobody at the resort was aware of the danger, and that there were no indications that resort staff did anything to alert visitors to the danger. The photos have since been broadcast by numerous media outlets, including USA Today.

Personal photo taken at site of alligator attack, one half hour before the incident. Source: Facebook

Personal photo of a boy unrelated to the victim, taken at site of alligator attack less than an hour beforehand. Source: Facebook

In the case of a lawsuit—which seems extremely likely—a jury will likely have to weigh these two factors when they decide whether or not Walt Disney World bears fault in the death of the boy this month. While it’s unclear what they will decide, the other members of the All Things Legal team were in agreement, despite not knowing of the 1986 case.

All Things Legal’s Verdict

Ed Schade got straight to the point: “Yes, they had a duty in this matter… The Grand Floridian Resort, which is a five star resort, they [have] this set up so you can actually go down to the edge of the water. They’ve got ‘No Swimming’ signs up, which to me just says there’s no lifeguard on duty, [and I say this] being a former state lifeguard. And they created an artificial sense of safety in that area. And if anybody had ever seen an alligator in that cove, or in that lagoon, that worked for Disney [World], they should have had a sign up. Because they’ve got people coming in from all over the world, that would in no way, shape, or form, in any way, be ready to expect an alligator at a Disney resort. So yes, I think they’ve got a huge, huge problem.”

As it turns out, Ed was in good company. Tim Hodson explained why he agreed: “I agree with Ed one hundred percent. One of the reasons why I agree with you is that within a 10 to 15 foot radius from [where the attack happened], they found four alligators when they were looking for the kid. So there’s clearly many alligators in this area… So yes, they are in trouble. There should have been some type of warning. I mean, how hard would it be, how expensive would it have been for Disney [World] to put up a sign that said, ‘Beware of Alligators?’”

Craig took this as a cue to get into the sometimes unpleasant analytical side of the business world, where cost often dictates whether or not a business acts to protect its customers: “It’s a cost-benefit analysis, which is, ‘how much does it cost to put up a sign’—200 bucks per sign?—versus the loss of life, which is very precious. [It’s not] like we’re asking them to build a bubble around it to keep [alligators] out which would cost a billion dollars. It’s putting up some signs.”

Judging by the unanimous opinion of the All Things Legal team, Disney likely bears a great deal of the legal fault, and will pay a steep price for their negligence. And given the media’s interest in the initial case, there are probably many more front page headlines to come.