jcb
always emerging from hibernation
- Joined
- Apr 28, 2007
Disclaimer: this is a general discussion of legal issues. It is not legal advice. I'm only discussing legal liability issue not moral ones. Disney's moral obligation to keep guests safe is a subjective issue and not one I attempt to address here.
OK - the easy answer is "yes" but that's because the headline is a trick question. Clients often ask, "can I be sued" and I respond, of course, it costs very little to file a lawsuit; what matters is how quickly you can get out of the lawsuit. Unfortunately, the news media loves sensational headlines about new lawsuits and does a lousy job of reporting when the lawsuit is dismissed.
In any event, here is one writer's perspective on Disney's liability risk.
https://www.hollywoodreporter.com/t...-reopening-movie-theaters-theme-parks-1295031
To be honest, the article is more about baseball than Disney. I'm also one of the folks who doubts the "baseball rule" (i.e, analogy) applies to Disney. Legally, there's a difference between a risk endemic to the sport (foul balls by sport participants) and those caused by other guests (I revisit this in the discussion of legal duties, below).
The article also assumes that Disney will only rely on website and warnings "printed" on tickets. But I suspect Disney's lawyers will (at least) have Disney post warning signs at the theme park entrances (and other locations) warning of the risk. Many baseball stadiums do this (don't @ me if you've been to Fenway and it doesn't have a warning sign, actually don't @ me if you've been to Fenway at all)....
The article tends to gloss over the causation factor. I seriously doubt anyone will succeed in suing Disney (in either Florida or California) merely by arguing they went to WDW or DLR and later contracted COVID-19. Did they fly? Did they drive and stop to buy gas? Did they eat at any offsite restaurant while at WDW or DLR? The very nature of viral exposure in a pandemic is that, in this setting, it is next to impossible to trace the exposure (and there can always be more than one exposure source). (Causation may be different in an employment settings where a large number of employees contract the virus.)
Still, the article does a decent job of discussing the legal "duty" WDW or DLR might have during the pandemic. It is probably accurate to say that, at least in California, DLR can't simply say, "enter at your own risk" and thereby avoid all liability. Most states narrowly construe disclaimers of risk. But unlike baseball, the most likely exposure risk here is from other guests. I think @WebmasterJohn would agree that the exposure risk from surface contact is comparatively low. So the question is then, what duty does Disney have? Does the legal duty require Disney to ban fireworks and shows because their very nature involves large gatherings. How will a lawsuit consider Disney's other efforts to avoid the spread? If WDW and DLR screen guests at the gate for body temperature is that enough to permit them to safely (from a legal liability standpoint) have some kind of a castle fireworks show? Would it be enough if WDW and DLR actually performed Conoravirus tests on all entering guests?
The "problem" with lawsuits is that sometimes, the legal duty gets made up as you go along. Florida may take a different position than California.
Sadly, I expect it will be a while before I'm willing to assume the risk. It's not that I don't trust Disney, it's the rest of you that give me pause....
OK - the easy answer is "yes" but that's because the headline is a trick question. Clients often ask, "can I be sued" and I respond, of course, it costs very little to file a lawsuit; what matters is how quickly you can get out of the lawsuit. Unfortunately, the news media loves sensational headlines about new lawsuits and does a lousy job of reporting when the lawsuit is dismissed.
In any event, here is one writer's perspective on Disney's liability risk.
https://www.hollywoodreporter.com/t...-reopening-movie-theaters-theme-parks-1295031
To be honest, the article is more about baseball than Disney. I'm also one of the folks who doubts the "baseball rule" (i.e, analogy) applies to Disney. Legally, there's a difference between a risk endemic to the sport (foul balls by sport participants) and those caused by other guests (I revisit this in the discussion of legal duties, below).
The article also assumes that Disney will only rely on website and warnings "printed" on tickets. But I suspect Disney's lawyers will (at least) have Disney post warning signs at the theme park entrances (and other locations) warning of the risk. Many baseball stadiums do this (don't @ me if you've been to Fenway and it doesn't have a warning sign, actually don't @ me if you've been to Fenway at all)....
The article tends to gloss over the causation factor. I seriously doubt anyone will succeed in suing Disney (in either Florida or California) merely by arguing they went to WDW or DLR and later contracted COVID-19. Did they fly? Did they drive and stop to buy gas? Did they eat at any offsite restaurant while at WDW or DLR? The very nature of viral exposure in a pandemic is that, in this setting, it is next to impossible to trace the exposure (and there can always be more than one exposure source). (Causation may be different in an employment settings where a large number of employees contract the virus.)
Still, the article does a decent job of discussing the legal "duty" WDW or DLR might have during the pandemic. It is probably accurate to say that, at least in California, DLR can't simply say, "enter at your own risk" and thereby avoid all liability. Most states narrowly construe disclaimers of risk. But unlike baseball, the most likely exposure risk here is from other guests. I think @WebmasterJohn would agree that the exposure risk from surface contact is comparatively low. So the question is then, what duty does Disney have? Does the legal duty require Disney to ban fireworks and shows because their very nature involves large gatherings. How will a lawsuit consider Disney's other efforts to avoid the spread? If WDW and DLR screen guests at the gate for body temperature is that enough to permit them to safely (from a legal liability standpoint) have some kind of a castle fireworks show? Would it be enough if WDW and DLR actually performed Conoravirus tests on all entering guests?
The "problem" with lawsuits is that sometimes, the legal duty gets made up as you go along. Florida may take a different position than California.
Sadly, I expect it will be a while before I'm willing to assume the risk. It's not that I don't trust Disney, it's the rest of you that give me pause....