Precedent to Tragedy at WDWby David Koenig, contributing writer
In the wake of last week's fatal alligator attack on Walt Disney World property, I've been besieged with interview requests by newspapers, radio stations, and even the NBC Nightly News with Lester Holt.
Most of the interviewers have been critical of Disney and, perhaps because my latest book is about Mickey Mouse lawsuits, they want to know if the family of 2-year-old Lane Graves will sue and how many tens of millions of dollars the family will collect.
Looking back through the Magic Kingdom case log, there's one incident with considerable parallels.
On August 11, 1977, just after 11:00 at night, the Goode family of Chicago—4-year-old Joel, his 9-year-old brother, his mother, aunt, and cousins—was waiting near the castle for the 11:30 Main Street Electrical Parade. Mrs. Goode took the boys to buy some ice cream from a nearby vendor. She fished around for some money in her purse, paid the vendor, and then looked back. Joel was gone. The family began frantically searching—even as the lights dimmed and the parade rolled by, and then, with park personnel, even after the park had closed. At 2:15 a.m., a diver found the boy's lifeless body submerged in the five-foot-deep castle moat.
Joel had evidently climbed over the short fence designed to keep pedestrians on the sidewalk, and onto a lawn area that sloped down to the moat. No one saw him, but he likely fell into the water and couldn't climb back out. The Goodes thought Disney could and should have done more to protect its guests, and filed suit against Walt Disney World and its insurer, Lloyd's of London.
Disney refused to settle. The park was adamant that that type of accident was unforeseeable and that it was not negligent. It was the mother who had taken her eyes off the child and it was the boy himself who had crossed two fences, a walkway, and a grassy slope to get to the moat. And, company attorneys argued, since no one actually saw the boy drown, how could Disney be linked to the death?
The Goodes' lawyer, however, contended that park personnel should have anticipated that a child might climb over such a low fence. Cast members admitted that children frequently climbed over to play on the grass. The fence, while technically 31 inches high, had a "stepping distance" (from the bottom rail to the top) of just 24 inches. During the trial, the lawyer demonstrated how easy it was for small children to climb over by presenting a videotape of 23 little kids scaling a same-sized reconstruction of the fence. Only one kid couldn't climb the fence; the other 22 hopped over it in an average of less than five seconds apiece. Had the fence been just one foot higher, he claimed, kids Joel's size could not have made it over.
In point of fact, Disney's own standards required a minimum 36-inch stepping distance for any fences designed to keep people from water hazards. Yet, at trial, park managers testified their short fence wasn't designed to keep children out of the moat; it was a crowd control guide, to keep pedestrians off the grass. As a result, for its purpose, the fence was entirely safe (and, doubling down, Disney kept the fence at two feet high during the entire 11 years of litigation. Not until years later did it raise it to standard railing height).
This then was an admission that there were zero safety barriers between guests and the moat. There weren't even any signs warning guests to stay off the fence or the grass beyond it, or that there was a dangerous body of water beyond that. The Magic Kingdom's moat was four to five feet deep, as opposed to just 18 inches to three feet deep at Disneyland. Algae and the moat's sharply slanted sides also made it difficult for anyone who fell in to climb out.
But wasn't either the boy to blame for trespassing or the mother for allowing him to? The Goodes' attorney responded that had the boy intentionally entered the moat, such as to swim or bathe, he would have been trespassing, but not if he fell in. And, even if he entered by choice, he would have been protected legally by the "attractive nuisance doctrine," since he was too young to appreciate the dangers involved.
The Magic Kingdom also had a greater burden to anticipate actions by small, unsupervised children, since they were a regular feature at the park. In the 12 months preceding the accident, 11,420 children were reported lost at the park, although none of them were found harmed or injured. Consequently, Disney had instituted elaborate procedures for reuniting separated children and parents—so one could conclude that since Disney knew that at any given moment there were lost children wandering through the park, it should have created an environment that was safe for lost children.
Initially, a circuit judge stopped the case from going to trial by ruling that there wasn't enough evidence to accuse Disney of negligence; he placed most of the blame on the mother. The Goodes appealed. The decision was reversed and the case went to trial in 1984. After eight hours of deliberations—the jury was hopelessly deadlocked.
At retrial in 1985, the second jury ruled that Disney was negligent in taking the necessary precautions to prevent children from falling into the water. The parents were awarded $1 million apiece, although the mother's award was cut in half because she was deemed 50 percent responsible. This time Disney appealed, saying the $1.5 million payout was excessive—but in 1988 the state Supreme Court decreed the verdict should stand.
The Goodes' jury concluded that Disney was negligent in four respects. Let's see if those apply also to the Graves case:
- Failing to provide barriers of adequate height to prevent access by small children to the otherwise unprotected water hazard – the Grand Floridian beach had no barricades, but has since added (possibly temporary) fences.
- Designing and constructing land areas that facilitated rather than prevented small children from entering an adjacent water hazard – alongside the castle moat, the grassy area had an unreasonably steep slope, which toddlers could fall on and roll down. The Grand Floridian beach was designed to invite guests to the waterside, even staging outdoor movies nearby.
- Designing and constructing a body of water that was inherently hazardous – the castle moat was considered to "contain water of an unreasonable depth, constituting a drowning hazard to small children." The Seven Seas Lagoon contained alligators. Disney has always tried to relocate alligators that get too big, from resort areas to conservation lands, but obviously can't regulate the entire reptilian population. It had always assumed that alligators, while predators, would shy away from humans. Yet one report has suggested that Disney's recent construction of Polynesian Resort bungalows on the water (not far from the Grand Floridian beach) not only displaced alligator habitat, but has encouraged the gators to grow more comfortable around people—particularly people who enjoy tossing them food (from the bungalows' private decks).
- Failing to provide an adequate warning to parents of the potential danger – the Grand Floridian beach had "No Swimming" signs, but one could argue that doesn't necessarily mean it would be unsafe to wade up to your ankles. There's also no mention of alligators (or snakes. Or deadly amoeba) that can lurk beneath the surface. The beach has since added warning signs to stay away from the water, to beware of alligators and snakes, and not to feed the wildlife.
In trying to anticipate how the Graves case will turn out, perhaps what's even more important is how the world—and Disney—have changed. The public today seems less likely to reflexively stick up for Disney (as the first judge in the Goode case did). Public opinion on the latest tragedy is coming down extra hard on Disney (I heard several people blasting Disney for "stocking the lake with alligators").
The company used to be able to use that former goodwill to insulate itself from bad press in fighting almost every court case to the bitter end. Nowadays, Disney thinks first about reducing its legal liability. When an alligator bit a guest in the 1980s, no one even considered putting up fences or warning signs that might disfigure Bay Lake.
This time, expect Disney to do everything it can to settle with the Graves family. The company may be convinced it did everything it should have, but its new mindset is, did we do everything we could have?