Story: A
very sad story is making the news rounds, as a 2
year old was snatched by an alligator while playing on a Disney World
beach, by the Grand Floridian Disney hotel.
The baby’s parents were present, but couldn’t save their baby. At this moment, the police are conducting a
recovery (and not rescue) search for the baby.
Issue: If
you applied Ontario law to this situation, then what would the parents have to
consider in a lawsuit against Disney World?
Analysis
I am not purporting to comment on Florida law, particularly in regards to their treatment of tort claims against Disney nor against landowners on the issue of wild animals. So my comments below are pretending that Ontario law would apply to this situation. The protections that Ontario affords to amusement parks is not the same as Florida affords to Disney World, which apparently employs over 66,000 people and contributes billions to their economy annually.
Liability - The first issue we look at is who is responsible or
liable for this incident. While this is
a tragic incident, Disney (or their insurer) might defend against a lawsuit by
stating that:
(1) there is a waiver of liability
signed and/or accepted as part of the hotel accommodation or as a guest of
Disney World;
(2) wild animals are
unpredictable and cannot be controlled; and
(3) Disney had posted “do not
swim” warning signs on the beach.
Waiver
First, there’s a question whether the waiver is applicable
in respect of injury or death of a child.
Further, there’s a question as to whether an alligator in a
Disney controlled area is a reasonably anticipated threat to tourists visiting
and staying at an (expensive)
Disney hotel and using their facilities.
Notwithstanding, Disney’s defence would be that a waiver
serves as a defence – generally in Canada this starts with the Crocker v. Sundance discussion.
Wild Animals and
Posted Warnings
On this issue, while assuming Disney has better and more
sophisticated arguments lying in wait, my reaction is that Disney here is
responsible:
- (a) for monitoring for alligators; and
- (b) more importantly, for warning their patrons about possible alligator attacks so families can stay far away from the water’s edge.
I don’t know what signage was present in this Grand
Floridian beach but I did visit Disney World last year with my family. We stayed at one of their on-site hotel resorts
with groomed, clean sand and hammocks and chairs set out for families to enjoy.
There were a few small signs indicating that swimming was
prohibited, which I hadn’t expected. I
thought about why that was (from a liability point of view) and thought that
Disney was prohibiting swimming because:
- they didn’t want people drowning on their watch;
- they wanted to avoid the expense of ensuring safety – i.e. providing life jackets and also monitoring against swimmer afters hours (i.e. drunk adults at night);
- there was too much water / beach to monitor. To beautify the hotel resort grounds, there were numerous manicured beaches for people to enjoy;
- they did not want to monitor water traffic vs. swimmers, with the waterways being used by various boats;
- they couldn’t guarantee the (lack of) cleanliness of the water, which I assumed might make people sick if ingested; and
- they did not want the expense of ensuring the bottom of the pond was properly groomed and safe for people to stand on, etc.
At no time, ever, did I think that alligators might be in
this Disney pond at our hotel. Not once.
There were absolutely no signs warning of alligators. If there was any known alligator threat, I
would have expected large warning signs on the beach. I certainly wouldn’t have allowed my kids to
get close to the water, if I had been warned of that risk.
As well, there were absolutely no warnings on their website
or promotional material that alligators could be an issue.
Yet Disney spends so much time and effort maintaining and
controlling their environment – I defy you to try and find weeds or unsightly
areas on their massive property – that Disney gives you the sense that they have
things ‘under control’. That they are
presenting you with an efficient and controlled (sanitized?) environment.
In fact, a memorable aspect of our ride on Disney
World’s Kilimanjaro Safari was that the many wild animals were so docile
and staying within their open-air boundaries (even with predators and prey in
very close quarters) that there was no doubt that Disney World gave the
impression that they had everything ‘under control’, including an absurd idea
like ensuring that alligators would not be around to attack your toddlers.
Damages
The second issue is, how much in damages can the parents
claim?
There are several claims that can be made if you’re applying
Ontario law. The relevant provision is s.61 of Ontario’s Family Law Act, which states in
part:
PART V
DEPENDANTS’ CLAIM FOR DAMAGES
Right
of dependants to sue in tort
61. (1) If
a person is injured or killed by the fault or neglect of another under
circumstances where the person is entitled to recover damages, or would have
been entitled if not killed, the spouse, as defined in Part III (Support
Obligations), children, grandchildren, parents, grandparents, brothers and
sisters of the person are entitled to recover their pecuniary loss resulting
from the injury or death from the person from whom the person injured or killed
is entitled to recover or would have been entitled if not killed, and to
maintain an action for the purpose in a court of competent jurisdiction.
R.S.O. 1990, c. F.3, s. 61 (1); 1999, c. 6,
s. 25 (25); 2005, c. 5, s. 27 (28).
Damages
in case of injury
(a)
actual expenses reasonably incurred for the benefit of the person injured or
killed;
(b)
actual funeral expenses reasonably incurred;
(c)
a reasonable allowance for travel expenses actually incurred in visiting the
person during his or her treatment or recovery;
(d)
where, as a result of the injury, the claimant provides nursing, housekeeping
or other services for the person, a reasonable allowance for loss of income or
the value of the services; and
(e)
an amount to compensate for the loss of guidance, care and companionship that
the claimant might reasonably have expected to receive from the person if the
injury or death had not occurred. R.S.O. 1990, c. F.3,
s. 61 (2).
First, if the parents are unable to work due to depression,
etc, then past and future income loss (or loss of earning capacity or
loss of competitive advantage) can be considered.
Next, there are some expenses that can be claimed, as
listed above, including funeral, travel and other expenses.
Finally, the parents would have a loss of care, guidance
and companionship claim associated with the loss of their baby.
$147,000 Upper Limit
for Damages for Loss of Care, Guidance and Companionship?
For a 1992 accident, the Ontario Court of Appeal upheld a
jury award of $100,000 in damages for each parent, arising from the loss of
their 14 year old son who was doing school-directed exercises, in gym class,
when the large handball net he was holding onto came down and crushed him: To v. Toronto Board of Education.
For a 2005 accident, the Ontario Court of Appeal reduced to
$125,000 (from $200,000) the damages for a mother of a 17 year old teenager who
was a passenger in a transport truck that was hit by another transport truck: Fiddler v. Chiavetti. The reasoning by the OCA was that the CPI
(consumer price index), when applied to a $100,000 in 1992, equaled
approximately $125,000 by 2005.
Applying the CPI to a $125,000 amount in 2005, it equals
approximately $147,000 in 2016.
Toronto Insurance and Personal Injury Lawyer
Insurance Law Geek
