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Harambe and the Alligator – A Difference in the Eyes of the Law

This blog focuses on the very sharp differences in the knowledge of the parents who suffered the tragic loss as compared with the landowner, in this case, the corporate giant Disney.

You may recall that a few months ago I did a blog on Harambe, the gorilla in the Ohio zoo and the little boy who found himself in the gorilla’s den. Today, I would like to take a look at another situation involving a deadly animal, the alligator in Disney. I’m sure you recall that that was the tragedy involving the toddler from Nebraska who disappeared and ultimately died from being pulled down under the water by the alligator. (Originally, it was thought that the alligator had actually -forgive this grotesque image- eaten the child.) As a theoretical matter, allow me to discuss the legal issue. What should Disney have done to have prevented this?

The facts were quite clear in that the parents and the toddler were walking at the edge of the lake at night. A key question in any kind of personal injury action is: “Was the danger open and obvious”? We have visited that issue in Massachusetts. For the sake of discussion, let’s assume we are using Massachusetts law and the negligence principles and concepts that come into play here in Massachusetts. First, what was reasonable for the parents to expect as they were walking at the edge of the lake that tragic night? They were not from Florida and they, therefore, in all likelihood would not expect alligators. They were not swimming so their conduct was surely not as culpable as if they were swimming. They were very close to the toddler, I think only 5 to 10 feet away and at the water’s edge.

In contrast, in looking at the conduct of Disney, I think you see quite a difference as to what their knowledge was. What is most significant is that Disney, according to the research I did, caught 240 alligators over the past decade; 15 alone were caught in just the first half of 2016. Given that the tort occurred in mid-2016, those 15, and for that matter those 240, are very relevant and probative to the negligence question. (Probative is a very meaningful legal term indicating that there is highly relevant evidence on a material point.) Clearly there was a large problem there and it should have put Disney on notice. They could have posted warning signs of potential alligator attacks. Other signs could advise hotel guests to stay clear of the water at night. Alligators would probably be most active at night, and an alligator expert could help on that, and other, issues. Of course, Disney could have taken steps to remove the alligators. I wonder what they’ve done since the attack as it may show what was feasible to have done. What sane individual would ignore a clear unambiguous warning about alligators? The answer is no one would ignore it. Thus you have a proximate cause of the negligence to the dreadful event that occurred -something that injured victims must prove.

In Massachusetts, we have a principle of law that if something is open and obvious then the landowner need not warn against it. If it is not open and obvious -and I contend that the presence of alligators was not open and obvious to this visiting family- then indeed there is a duty to warn. In fact in Massachusetts, the courts have very recently gone on to say there still can be liability if something that is open and obvious has not been remedied. I do not want to get too involved in that very recent case; I simply want to say that if something is not known to a plaintiff, to a person who gets injured, who comes on to a property and that person is not properly warned, it is a very strong case. To the parents of this Nebraska toddler it was not known; in contrast, the risk was fully known to Disney.

The alligator case is obviously a very tragic case. Looking at it from a cold, dispassionate view in terms of whether there is liability, it seems to me to be a very strong case unlike the Harambe case for the parents. Not that suing is on their mind. I am not suggesting that. I am suggesting, however, that Disney had ample knowledge of what could occur, failed to warn, and failed to take remedial steps. The parents, on the other hand, were entirely unsuspecting and a tragedy resulted.

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