Disney, Alligators and Lawsuits – Part 2, Is it Mom and Dad’s Fault?
Today we pick up our discussion of the recent tragic alligator attack at Disney that caused a young toddler’s death and whether Disney should be held responsible for that tragedy. As we discussed last time, if you are injured on someone else’s property, they aren’t necessarily responsible for those damages. The law that governs these types of claims is called premises liability.
Contributory Negligence and the Disney Case
By far, the most common objection I have heard in response to this debate is that the parents weren’t properly monitoring their child, and thus, Disney World shouldn’t be held responsible. In the American torts system, we first ask the question of whether someone or some entity was careless, causing harm to another. We discussed that in Part 1 of this series. After that initial inquiry, we must ask whether the injured party was also in some way, at fault. In many states, if an injured party is partially at fault, they may still be able to recover for the harm that was caused, as long as they were not primarily at fault (this is known as comparative negligence). In North Carolina, if an injured part is in any way at fault, they are barred from recovery, a harsh doctrine known as contributory negligence. Think of contributory negligence to mean if you are even 1% at fault, you recover zero. In practice, some juries ignore the doctrine of contributory negligence if it would lead to an overly harsh result, but the doctrine can still be very difficult to overcome.
What Is Contributory Negligence?
It’s easiest to conceptualize contributory negligence in the context of a car accident. If you are driving through an intersection and have a green light, if another driver is drunk and not paying attention, and turns left into you, they are negligent, or careless. If, however, you were speeding, a jury might find that you acted with contributory negligence. In North Carolina, if a jury were to find contributory negligence, you would receive nothing.
Was This a Case of Contributory Negligence?
Irrespective of whether the law in the State of Florida follows the doctrine of comparative or contributory negligence, it would arguably be difficult in this instance to find that the parents of the toddler were in any way negligent. Consider that the law does not require the parents to be perfect; it only requires that they act reasonably. Those standards are different. Most parents with children understand that it’s virtually impossible to keep an eye on children every waking moment of the day. Most parents, even the best of parents, have had moments where a child has escaped their watchful eye. Simply because a parent may have had a head turned, or was perhaps ordering a sandwich, doesn’t mean that they weren’t acting reasonably.
This distinction between perfect parent and reasonable parent is important. In practice, I have found that most jurors believe they would never make the same mistake. They often impute to others a higher standard of conduct than they could ever adhere to themselves. In fact, one of the great barriers to recovery in any civil lawsuit is helping a jury to understand that recovery should not be conditioned on perfection.
Finally, some have said that the parents should have anticipated that there would alligators in Florida. While many people, perhaps most people recognize that there are lots of gators in Florida, Georgia and South Carolina, most people, especially those from the flatlands (in this case, Nebraska), probably make the assumption that the resort keeps the property free from dangerous reptiles, especially in areas that aren’t closed off. Given all of the above factors, is it really reasonable to apportion some of the blame for this child’s death with the parents? In Part 3 of this series, we’ll examine burden sharing and economics, and why those concepts are important to the American torts system.