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What would happen in the Disney case if it were in Alabama?  These types of cases are commonly referred to as “premises liability” cases.  This language comes from the liability of the owner of the premises.  There are many classifications of the person who is on someone else’s land:  Invitee, Licensee and Trespasser.  The family involved in the Disney incident would be considered an invitee in Alabama.  An invitee is defined by Alabama law as “[o]ne who enters the land of another, with the landowner’s consent, to bestow some material or commercial benefit upon the landowner.” Davidson v. Highlands United Methodist Church, 673 So.2d 765, 767 (Ala.Civ.App.1995). See also Restatement (Second) of Torts § 332 (1965).  Further,

A landowner owes an invitee a duty to keep the premises in a reasonably safe condition and, if the premises are unsafe, to warn the invitee of defects and dangers that are known to the landowner but are unknown or hidden to the invitee.”  Prentiss v. Evergreen Presbyterian Church, 644 So.2d 475, 477 (Ala.1994).

In the Disney case, Disney owed a duty to the child (which is key) to keep the premises in a reasonably safe condition, and if the premises are considered unsafe, to warn the child of the defects and dangers known to Disney but unknown or hidden to the child.  The fact that this was a two-year old child is a very important fact because Alabama, as opposed to Florida, is a contributory negligent state.  Under the contributory negligence rule, if an injured party contributed in any way (even if only 1%) to their injury, the injured party cannot recover.  In states such as Florida (and 45 other states), they have comparative negligence which means the jury gets to weigh the fault such that if the injured party is 1% at fault, they receive 99% of the award as opposed to the fault being an absolute bar to recovery.

However, Alabama has determined that children under a certain age cannot be contributory negligent.  That age is 7. If a child is between the ages of 7 and 14, they are presumed to be incapable of contributory negligence, but the other side can rebut that presumption.  So, in this case, the child could not have contributed to the incident.

So, blaming the parents is really not a legal argument.  While the parents maybe could have watched their child more carefully, Disney knew of this hidden danger and did nothing to prevent the possibility of the injury nor warn of the alligators.  This duty is to the child, not the parents in this case.

In a next post, we will explain how this case would also differ from Florida in a damages aspect.

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