For Florida residents, we all are aware of the dangers of alligators in our freshwater lakes and canals. We are also very familiar with alligator warning signs, which are common around golf courses, ponds and public parks all over Florida. However, out-of-state visitors often do not have this knowledge and understanding, especially when they are visiting a park that markets itself as safe and “magical.”
Negligence is the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation or any conduct that falls below the legal standard established to protect others against unreasonable risk of harm. In order to prove negligence, one must establish the following elements:
- Existence of a duty;
- A breach of that duty;
- The breach of that duty was the actual and proximate cause of an injury; and
- Damage to the plaintiff.
The general duty of care is imposed on all activities. When a person engages in an activity, they are under a legal duty to act as an ordinary, prudent, reasonable person. It is presumed that an ordinary, prudent, reasonable person will take precautions against creating unreasonable risks of injury to other persons. Thus, if a defendant’s conduct creates an unreasonable risk of injury to persons in the position of the plaintiff, the general duty of care extends from the defendant to the plaintiff. No duty is imposed on a person to take precautions against events that cannot reasonably be foreseen.
In this case, Disney owed a duty to fare-paying patrons of its parks to protect them from known dangers. At the very least, they had a duty to warn fare-paying patrons of known dangers. I find it hard to believe that Disney World did not know that there were alligators in the Seven Seas Lagoon. A competent attorney should be able to prove that Disney had ample knowledge of this fact. Also, I find it troubling that Disney enticed patrons to go near the Lagoon with white sandy beaches. If they knew, or should have known, that dangerous alligators were present in the Lagoon, why even allow patrons access (let alone entice them to enter) that part of the park? In this situation, the duty Disney owes to its guests is to use reasonable and ordinary care in keeping the property reasonably safe for the benefit of the guest. This general duty includes the duties to warn of non-obvious, dangerous conditions known to the landowner and to use ordinary care in active operations on the property as well as a duty to make reasonable inspections to discover dangerous conditions and to make them safe. The requirement to “make safe” dangerous conditions usually is satisfied if a reasonable warning has been given.
Where a defendant’s conduct falls short of the level required by the standard of care owed to the plaintiff, they have breached their duty. In this case, Disney had a duty to warn of dangers known to them. Disney failed to warn in this case by not having alligator warning signs on the beaches of the Seven Seas Lagoon.
The plaintiff in this case must prove the breach of the duty described above was both the actual and proximate cause of the death of the 2 year old child. To prove actual cause, death must be proved to have been caused because there were no alligator warning signs present. The family of the child must be able to testify that they had no knowledge that there were alligators in the Lagoon and that they would not have entered the beach had there been signs. To prove proximate cause, the plaintiff must pass a test of foreseeability. They must prove that it is foreseeable to the defendant that alligator attacks could happen if guests were allowed on the beaches abutting the Seven Seas Lagoon. This can be proven in this case by discovery on what Disney knew about the alligators in the Lagoon and safety discussions that led them to put up insufficient “no swimming” signs as opposed to the alligator warning signs.
The last part of the negligence element must be proven damages. In this case, that is going to be the most difficult for this poor family to deal with. How do you put a price on the loss of a small child? This is what I struggle with most as a personal injury attorney. True justice would be getting your child back unscathed; however, the civil justice system cannot do that. Unfortunately, all the civil justice system can do is compensate you for your loss by a monetary award.
Of course, Disney will fight this likely lawsuit. They are going to claim the plaintiffs were contributorily negligent by letting the child into the water. They are going to claim that a reasonable person should know that alligators may be present in any Florida freshwater system and they accepted that risk. These are defenses that the plaintiffs must overcome in order to successfully bring their claim.
The attorneys at LaBovick Law Group have been fighting for those injured by the negligence of others for over 20 years. We have a team of attorneys licensed to practice throughout the state of Florida in both state and federal court. Going up against juggernaut corporations like Disney or Publix is a daunting task. It takes a firm of dedicated attorneys to fight for your rights against these corporations and their high-priced defense attorneys. If you or a family member has been injured due to the negligence of a corporation, call today for a free consultation.