One of the claims made by Disney World in Florida is that it is the “happiest place on Earth”. Of course, it would be difficult to convince the Graves family of Nebraska of the merits of this claim after the incident last week in which they lost their two-year-old son, Lane, after he was attacked and drowned by an alligator as he waded knee-deep in a shallow lagoon outside the family’s resort rental. The entire episode raises a number of intriguing legal issues and supplies a test case for students of the law as to the extent of an occupier’s liability in negligence towards its lawful visitors.
I readily concede that there is arguably much other fodder for the columnist this weekend. The surprising criticism of the United States Embassy in Kingston by the Jamaica Attorney General for its decision to fly the rainbow flag, most used by the LBGTI community, in sympathy with the victims of the mass shooting in Orlando early Sunday morning; the unsuccessful attempt of Mr. Maurice Tomlinson, a self –titled homosexual and LBGTI activist, to persuade the Caribbean Court of Justice that similar provisions in the Immigration Acts of Belize and Trinidad & Tobago deeming homosexuals as prohibited immigrants served to deny him his freedom as a CARICOM national to enter and remain in another member state for a period of six months unless excluded for other stipulated reasons; and the ongoing standoff between a local entrepreneur and my primary school classmate, now Chief Town Planner, Mr Mark Cummins, might all have provided ample material for this hebdomadal (!) essay. However, perhaps as a coda to my effort last month, “The Gorilla and the Boy”, I prefer today to explore the legal intricacies of the boy and the alligator.
It is at least remarkable how frequently art seems to imitate life. Just last April, in the examination for first year students of the Law of Torts, I posed a scenario where there was the need to determine whether an occupier had sufficiently complied with her duties towards another by the mere placement of a sign which stated “Watch your step” in a circumstance where her lawn had been left slippery with oil and where, as a result, the visitor naturally slipped, fell, and injured himself. Now, in the Disney World incident, a significant consideration will be whether a sign that merely enjoined “swimming” was adequate to protect against the rare, though not unlikely, actuality of an alligator attack. The issue is also relevant to the Barbadian occupier of premises, though, of course, the incidence of an attack by an alligator here may be a “fantastic possibility” rather than the “reasonable probability” that ought reasonably to be guarded against by an advertent occupier.
Nevertheless, section 4(5) of the Barbados Occupiers Liability Act , Cap 208 provides-
“Where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe”. (Emphasis added)
Clearly, it may be argued that a sign which simply seeks to forbid swimming is insufficient to enable a visitor to be reasonably safe where there is a not remote probability of the presence of alligators that, as I argued with the gorilla previously, are treated as ferae naturae or wild by nature. In consequence, it is not humanly possible to predict their behaviour, especially in a situation where the distinction between a small child and prey for the evening meal would be a difficult one for the beast immediately to draw.
Nor should it matter that the animal is not owned or controlled by the occupier of the property here. The presence of the alligator presents a danger that might have been foreclosed by the resort complying with its duty qua occupier “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is permitted by the occupier to be there”.
Other legal issues may also arise- Did the father take as much care for the safety of the child in the circumstances as a reasonably diligent parent should have? Or should he be treated as having been contributorily negligent? In other words, did he, by permitting the child to wade in the water at that time, contribute to the happening of the tragedy or was the event so objectively unforeseeable that no blame at all should be attributed to him?
Indeed, he himself might have a claim against the resort. There is no doubt that he would have been seriously traumatized by the chain of events, especially after having failed to pry his son loose from the steely grip of the alligator and watching in horror as it swam away with the child in its jaws towards one certain horrific outcome.
If the negligence of the resort may be established as well as the medical proof of some psychiatric injury having been caused to the father thereby, it would be highly likely that the father may recover substantial compensation for the psychological effects of the incident on him as a secondary victim who would have shared close ties of love and affection with his son and who, with his own unaided senses, would have witnessed the particularly horrifying event as it must have been.
News in recent days is to the effect that Disney is now attempting to change the signs around the lagoons to warn of the likely presence of alligators. In light of the above, this is scarcely surprising and may serve as a subtle concession of liability.
Thing is, it comes almost a week too late for little Lane Graves.