Alligator Death at Disney

Help Clients Learn From the Tragedy

alligator
Judd Patterson/Getty Images.

The death of two-year-old Lane Graves after he was attacked by an alligator while wading in the lagoon at the Disney Grand Floridian Resort and Spa, in addition to being a tragedy, highlights the vulnerability of travelers and the harm that might befall them. The child apparently was wading at dusk on a beach marked with “No Swimming” signs. While much has been made in the media that Floridians tend to be aware of the dangers of murky waters in the state, land-locked Nebraskans, such as the boy and his family were, might not be so familiar with the hazards associated with certain reptiles.

Reports then surfaced that some visitors to resorts at ​Disney World actually feed alligators. Then a video allegedly depicting a Disney employee smacking down an alligator near the Splash Mountain ride appeared on the news. At around the same time, a man who survived an alligator attack 30 years ago at another Disney resort in Orlando talked to a reporter about the ordeal. The takeaway: Alligators are a problem in Florida, even at high-traffic locations like amusement parks, even in manmade bodies of water.

What some might be wondering: what sort of warning is enough? What protections are sufficient? Hospitality and other lawyers working with resorts and other clients might use this moment to urge a review of clients’ own premises liability vulnerabilities with an eye toward preventing and minimizing any prospective harm. It’s not just hotels and restaurants that should be concerned; any business that has a brick-and-mortar facility might take this moment to have its lawyer review its exposure.

Even purely Internet-based businesses might seek a review. While they are unlikely to be concerned about dangers posed by wildlife to their customers, such businesses — and their customers’ credit card numbers — could be vulnerable to cyber theft.

As commentators assess Disney’s liability in the sad affair, wondering what did employees know and when did they know it, wondering how sufficient the signage was, contemplating precautionary measures that might have been taken, lawyers for other businesses may want to use this example to raise the prospect of a vulnerability audit.

After all, even folks at the best of corporations can make errors and mistakes of judgment. Just look at examples like Volkswagen’s emissions issues, where software was used to mislead regulators about the results of emissions tests or ConAgra’s problems with contaminated peanut butter.

Business Pressures

Lawyers, whether practicing in the field of hospitality law or not, might take greater efforts to understand the pressures on the business side of a client’s operation. In the world of leisure, of course, the goal of guests is to have a good time, to get away from day-to-day worries, to relax, and, perhaps, to interact with the environment in some way, whether that is on a golf course, at a beach, or on a hiking trail. The business, of course, makes money when its guests do just that.

That can translate into occasional bad judgments, sort of like the “we’re not closing the beaches for Fourth of July even though there’s a great white shark in the water” attitude of some of the characters in the film Jaws. Lawyers are sometimes criticized for being the voice of ‘no,’ the voice of doom, the sort to cluck, “the sky is falling.” It only makes sense that clients want lawyers who will tell them how they can conduct their businesses safely.

Here is where lawyers can make a persuasive argument — identify risk, then manage it — and then point to the tragedy at Disney to underscore their point.

Ultimately, lawyers themselves might feel uncomfortable with the business decisions made by their corporate clients, especially if those decisions are rendered after those clients were warned of legal risks. A lawyer giving counsel to a corporate client might present that client with an array of options, from a ‘do nothing’ approach to making an operation entirely hazard-free, something that is probably neither possible nor affordable. Here is where a bit of lawyerly doomsaying might actually help the business side of an operation that is a bit too close to the field. People working every day near water in Florida might well know about the large reptiles in the murk.

People living in Florida might well know about the speed and strength of an alligator’s snap or of its ability to move quickly for short distances or about its feeding times. Invitees may well not. Guests at a facility may not appreciate the generalities of signage. They might misinterpret ‘no swimming’ signs to understand that wading is allowed or figure that swimming is barred just because there is no lifeguard on duty or because boats traverse the water or because the water might look a little bit polluted.

Here is where a lawyer may be able to offer even more specific guidance by reviewing the appropriate law and an array of signage that was deemed sufficient to preclude disastrous liability and perhaps some that wasn’t.

Premises Liability Refreshers, Best Practices, Employee Training, and Common Sense

A vulnerability assessment might not merely identify areas where there is risk — the alligator-prone pond, the shaky railings on the stairs, the leaky ceiling giving rise to mold and mildew — but also corporate culture inhibitors. Are employees afraid to speak up? Are their concerns dismissed if they do? Are employees so conditioned to the dangers that they disregard the vulnerabilities of others who might not know what to do if, say, they see an alligator approaching? Are employees who do speak up the ones who are overlooked for promotions and raises? Do senior leaders have open-door policies, or is there a system in place for complaints or concerns to be raised anonymously?

No matter the business, the risks and liabilities associated with it are not limited to conflicts with wildlife. Depending on the type of business involved, it may need to address the problem of drunken or disorderly guests, the overall safety of the premises (Are there sufficient life jackets on the boat? Fire extinguishers in stairwells? Lighting in the hallways? Strong enough locks on doors?), and the appropriateness of employees (Are convicted child molesters interacting with juveniles? Is someone with anger management issues working in customer service? Is someone with a few stints at rehab in her background operating the rides?). Of course, any business will need to comply with employment laws, may be called on to negotiate agreements (in hospitality, with spas, or kiosks, or restaurant managers), and will need to address the safety of its customers (Is there any security at that night club? Is food at that grocery store handled safely? Is the parking lot well-designed and lighted?).

The goal, of course, is to comply with applicable laws (whether federal, state, or local), to identify potential legal hazards, and to prevent or minimize associated risks. This might be done by taking certain actions to fortify a business (“let’s fence in that pond and keep guests far away from it”), by modifying signage (“danger-alligator habitat”), by revising procedures and developing best practices (if a guest enters water where swimming is banned, the guest will be directed to exit the water by an employee; if an alligator is sighted in a body of water adjacent to an amusement park ride, the ride will be shut down and the alligator will be removed), by training employees (“here’s what to do if an alligator is sighted on the property”), and by conducting drills and making sure that procedures taught in training are actually followed.​

Another Time, Another Alligator, A Different Result?

A lawyer might make business clients aware of how serious the consequences can be by discussing pertinent caselaw and explaining what it could mean for the client company. So, for instance, someone reading Palumbo v. State Game and Fresh Water Fish Commission, 487 So. 2d 352 (Fla. Dist. Ct. App. 1986) rather casually might think that the decision deeming a university not liable when a student was attacked by an alligator in a lake owned by the university where a “no swimming allowed” sign was posted is a clear-cut indicator that such signs are sufficient in similar scenarios involving, say, an amusement park with a man-made lagoon. A lawyer might help a client distinguish the decision by noting that the student in the Palumbo case actually was swimming, not wading, in the lake when he was attacked. A lawyer might help a client distinguish the decision by noting that there was other signage around the park at issue warning about alligators. A lawyer might help a client distinguish the decision by noting that there had been no similar incidents at this park. Suddenly, what might have seemed clear about the law and its signage requirements regarding alligator dangers might be as murky as the water the reptiles live in.

Companies of all sorts and their insurers may be well-served to reassess their own vulnerabilities in light the death of that two-year-old at Disney. Their lawyers may well be able to help them prepare for accidents and to mitigate any hazards and to overcome resistance to capital outlays. Of course, a lawyer embarking on such an endeavor will need to the attorney-client privilege in mind to protect confidential communication.