News Signs = Admission of Liability?

Posted on by Horman Nichols, LLC

Three days after an alligator dragged Lane Graves to his death on a Disney property, signs were installed warning guests about alligators.  Additionally, barriers are being installed.

So, since Disney has started posting these signs, this is essentially tantamount to an admission that the warnings should have been in place earlier, right?  The law says, no, it is NOT an admission of liability.

The signs Disney has posted are what the law refers to as “subsequent remedial measures.” This means essentially repairing/remediating something AFTER someone gets hurt.  This is not admissible in Florida (and pretty much every other jurisdiction) to prove that someone is civilly liable.  Florida’s law states “Evidence of measures taken after an injury or harm caused by an event, which measures if taken before the event would have made injury or harm less likely to occur, is not admissible to prove negligence.”

The primary reason behind this law is the practical rule that society wants to encourage individuals, companies, and other entities to take steps to prevent further injuries. Allowing such evidence to be admitted in court will likely serve as a deterrent to parties from making the improvements in the first place if those changes will later be used against them in court.  There are additional legal theories that tie into the rules of evidence, but the public policy argument is the most crucial one.

So the question of whether or not Disney should have had these types of signs up BEFORE a 2-year-old was killed on its property is one that a judge or jury may end up deciding, although as our last blog post indicated, a huge settlement is the likeliest resolution.

Is Disney Legally Liable for the Alligator Attack

Posted on by Horman Nichols, LLC

By now, most of you have read the tragic, heartbreaking story about the 2-year-old boy who was grabbed by an alligator and pulled into the water at Walt Disney’s Grand Floridian resort in Orlando.

One of the secondary questions that has likely been thought or discussed is, what liability, if any, does Disney have as result of this tragedy.

The law generally states that the “duty” (responsibility) owed by a landowner to a person, depends on that person’s legal status on the land.  For example, if someone is trespassing on your land, the duty you owe to them is much different from what you owe someone you’ve invited onto your property.

The Graves family (the boy’s family) would be considered an “invitee” on Disney’s property.  They were invited to be on the property and they paid to stay there.

Florida law says that the owner or operator of the property has to maintain it in a reasonably safe condition and correct or warn of the dangers that the invitee knew or should have known about and which the property owner did not or should not have known had they exercised reasonable care and diligence.   

Danny Cevallos, a legal analyst for CNN wrote an article discussing this issue.  He points out that “whether or not Disney fulfilled its duty to the child and his family doesn’t just depend on their status as “invitees.” It’s also determined by the legal status of the “hidden danger” — in this case, the alligator.” He goes on to explain an area of law that is not commonly discussed, known as “ferae naturae.”  He states that under this legal doctrine, Florida law does not require a landowner to anticipate the presence of harm from wild animals.   As with most rules, there are exceptions.  Cevallos gives the following example, “if a resort had an alligator on a leash tied to a pole in a petting zoo, that’s going to impose liability in a way that an alligator born free in a swamp adjacent to a hotel would not.”

The ferae naturae doctrine does not provide complete immunity to a property owner in a situation like this. Florida courts have held that landowners may still be liable if they “know or should know of an unreasonable risk of harm posed by an animal on their premises, and cannot expect patrons to realize the danger or guard against it.”

The liability for Disney in this tragic situation will depend on a lot of factors, including what, if anything, did Disney know about the presence of alligators in the lagoon and what warning, if any did they give their invitees?  Numerous articles have stated that there were no signs posted specifically regarding the presence of alligators.  These are all things the trier of fact (usually a jury, but sometimes a judge) would have to determine in a trial. However, the likely reality is that Disney will quietly pay a settlement to the family (likely a confidential amount) and this will never go to trial.

Exotic Dancers Should be Classified as Employees

Posted on by Horman Nichols, LLC

The 4th Circuit Court of Appeals ruled that exotic dancers at two Maryland night clubs, Fuego Exotic Dance Club and Extasy Exotic Dance Club, were misclassified as independent contractors, when they were in fact employees.

Six dancers brought suit, alleging they were owed back wage and damages as a result of improperly being treated as independent contractors.

Ultimately , money is a strong motivation for employers to classify workers as independent contractors versus as employees.  Designating workers as independent contractors allows employers to not pay minimum wage or overtime, carry workers compensation coverage for the worker or pay for unemployment insurance for the misclassified workers.

Courts generally look at several factors that determine if a worker is an employee versus an independent contractor and the most crucial of these is the amount of control the employer exerts over the worker (i.e., dictate schedules, how the work is to be done, etc.).  The 4th Circuit found that the amount of control the clubs had over the Plaintiffs was enough to create an employer/employee relationship.   Judge Wilkinson III noted in the Court’s opinion, “The clubs insist they had very little control over the dancers. Plaintiffs were allegedly free in the clubs’ view to determine their own work schedules, how and when they performed, and whether they danced at clubs other than Fuego and Extasy. But the relaxed working relationship represented by defendants — the kind that perhaps every worker dreams about — finds little support in the record.”