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Alligator snatches toddler wading in Disney lagoon
01:28 - Source: CNN

Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.

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Danny Cevallos: Hotel liability for attack depends on how law defines status of both family and alligator

What hotel knew in advance about the risk of harm may reveal them to be negligent, he says

CNN  — 

An alligator has attacked and dragged off a 2-year-old boy in a lagoon near a Walt Disney World hotel in Florida. On Wednesday afternoon, after an exhaustive search, remains believed to be the child’s body were recovered.

Danny Cevallos

Resorts are frequently located in exotic destinations, where non-native vacationers often come into close proximity with native wild animals. Often, it’s considered part of the experience of a tropical vacation to see a giant turtle or a shark up close. But when tourists are hurt by the wild animals at these resorts, who is liable?

There’s an old legal principle that landowners are not automatically liable for attacks by wild animals on the premises, but that’s a rule that has plenty of exceptions. A resort that negligently causes injury to one of its guests can be held liable, irrespective of the traditional rules.

As a general proposition, when tragedies happen to people on someone else’s property, the liability of the property owner depends on the status of the person injured. Someone welcomed onto the land by the property owner and who is paying to stay there is likely an “invitee” under the law.

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Police: Alligator attacks 2-year-old near Disney hotel
01:17 - Source: WKMG

In Florida, a property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition, and; (2) the duty to warn of latent or concealed dangers which (a) should be known to the owner and (b) are unknown to the invitee and (c) cannot be discovered through the exercise of due care.

What about the beach or the lagoon as an “attractive nuisance?” A landowner can be held liable for harm to young children in that instance, but that doctrine probably doesn’t apply here. First, the harm must be caused by some artificial condition maintained on the property – not a natural, living creature. Second, the doctrine is premised upon the child as a trespasser, not an “invitee.”

But in this instance, 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. So when are wild animals on the land considered an “unsafe condition?”

It depends. “Ferae naturae,” meaning “animals of a wild nature or disposition,” is a legal doctrine – dating back to the Roman Empire – in which wild animals are presumed to be owned by no one specifically but by the people generally. Simply put: Under the law, wild animals are unpredictable and uncontrollable.

In Florida, the law does not require a landowner to anticipate the presence of or guard an invitee against harm from wild animals – or “ferae naturae.” This rule does have exceptions; for example, where the owner harbors such animals or has introduced onto his premises wild animals not indigenous to the locality. If wild animals are reduced to private control, confinement and possession, they become private property, which heightens a landowner’s exposure to liability when tragedy strikes.

To illustrate this point with an absurd 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.

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Gorilla drags 3-year-old boy in shocking video
02:51 - Source: CNN

In determining whether a resort introduced non-native animals, geography matters; so does zoology. A resort in Alaska that imports alligators is more likely to be liable than an Orlando resort, because Alligator mississippiensis is not indigenous to the frigid Last Frontier State.

Courts in the Sunshine State have observed what most Floridians already know: alligators are native to Florida. Accordingly, landowners are not automatically required to have them “under dominion and control.”

It’s important to note that this wild animal doctrine certainly does not provide blanket immunity to a resort in a situation like this. Florida courts recognize that landowners may be negligent 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.

So, for example, suppose a resort had a known infestation of fire ants, and failed to call pest control. Suppose also that patrons checking in and out of the hotel were not warned and had no reason to know that the hotel is in fire ant territory. Then suppose that the hotel knowingly leaves out food that might attract fire ants. That might be a case where the resort’s negligence overcomes any protections of the wild animal doctrine.

The ferae naturae doctrine really only says that a resort or other landowner is not automatically liable for what wild animals on the property may do, but only so long as the animal is native, and the landowner didn’t keep the animal as a hotel pet.

Alligators aside, what about the drowning risk of the lagoon itself? Florida courts have long held there is no liability when a child drowns in a natural or artificial body of water – unless there is some unusual danger not generally existing in similar lagoons, or the water contains a dangerou