Can WDW or DLR Guests Sue Disney if they contract COVID-19 after a visit?

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.

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.... :sick::rolleyes1:stir:
 


  • Lesley Wake

    DIS Veteran
    Joined
    Mar 16, 2017
    Also, there is no way to prove you contracted it at Disney. If you go there, you probably went other places too, whether airport, hotel, gas station, store, etc. No one is going to go from 2-weeks locked in their house with absolutely no contact with anyone else to suddenly showing up at a theme park.

    If you get injured from a foul ball or some other physical method, you know where, when and how that happened. No way to do the same thing for an "invisible" virus.
     

    Primeval Princess

    Momketeer
    Joined
    May 14, 2020
    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.

    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.... :sick::rolleyes1:stir:
    The federal government should make it illegal to sue over the contraction of Covid. That is probably an essential step in getting our society completely out of closure mode.

    No, I don't think anyone could win such a lawsuit. But the fear of being sued and having to spend money on a legal defense, is typing the hands of many institutions that want to reopen.
     

    VandVsmama

    DIS Veteran
    Joined
    Mar 28, 2011
    The CEO of Disney corporation has already come out and stated recently that anyone who chooses to go to a Disney park does so knowing that they (the guest) assumes the risk of contracting corona virus. I fully expect a similarly worded disclaimer to appear on the theme parks' website and in printed materials very soon.

    It won't prevent people from suing. But they won't win such a lawsuit.
     

    OKW Lover

    Retired and living 2 miles from The Castle.
    DIS Lifetime Sponsor
    Joined
    Apr 29, 2004
    Thanks for the analysis Jack. I suspect that there will be a lawsuit. Its pretty much inevitable IMHO.

    Perhaps we should start a pool on how long after opening it will be before it happens. I'd go with 1 month.
     
  • hertamaniac

    WDW Local
    Joined
    Feb 9, 2017
    I don't know the relevancy of this, but the entrance ticket covering all/some liability has me confused:

    I was at a race a few years ago when two cars collided and a piece of carbon fiber (I'll call it shrapnel) had flown over my head and struck an attendee behind our grandstand. The attendee did file a lawsuit which tried to hold liable the racing series, the city, the promoter and probably a few others I am not aware of. My point is that the claimed ticket disclaimer did not prevent the lawsuit(s). I do not know the outcome of the lawsuit.
     

    TheMaxRebo

    DIS Veteran
    Joined
    Jan 12, 2008
    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.
    @jcb - are the signs they are putting up at Disney springs and the warning in the app what you were thinking they would add to reduce their exposure? (See images below)

    Key line I think that says: “by visiting Walt Disney World, you voluntarily assume all risks related to exposure to COVID-19.”

    496204
     

    Beer Me

    DIS Veteran
    Joined
    Jun 3, 2014
    Not a lawyer - but the only way it could possibly make sense to have a case against a business for getting covid would be if they were open in violation of the law.

    Even that is a big “if” because it would be impossible to prove when/where/how you got the virus
     
  • jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    @jcb - are the signs they are putting up at Disney springs and the warning in the app what you were thinking they would add to reduce their exposure? (See images below)

    Key line I think that says: “by visiting Walt Disney World, you voluntarily assume all risks related to exposure to COVID-19.”

    View attachment 496204
    Yup.

    I would quibble about the wording - I question whether it makes sense to try to apply assumption of the risk here - but that may be based on their interpretation of Florida law and I'm unlicensed in Florida. And to be honest, I'm not sure what else Disney could say. "By entering here, you agree not to sue Disney if you later contract COVID-19" is probably not measureably better or even all that different.
     

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    To follow up on my prior post, here's what I think Disney's signs are trying to say, again, legally, not grammatically or morally. It's complicated so bear with me.

    Florida adopted comparative negligence a while back. Loosely speaking, this let's a jury apportion fault by percentages. It used to be that if the plaintiff (the party suing) was even 1 percent at fault, they could not recover anything from the party who was 99% at fault (this is factually extreme but illustrates the principle). Comparative negligence (or fault) lets the jury award some damages to an "at fault" plaintiff. Typically, those damages are reduced by the percentage of the plaintiff's fault. So, if the jury awards $100k to a plaintiff who is 25% at fault, the judgment for the plaintiff is $75k. There are many variations. Some states say that if the plaintiff is 50% or more at fault, they get nothing. Florida, however, bars recovery "only when the plaintiff's negligence is the sole legal cause of the damage, or the negligence of the plaintiff and some person or persons other than the defendant or defendants was the sole legal cause of the damage." Hoffman v. Jones, 280 So. 2d 431, 438 (Fla. 1973)

    How does that apply to assumption of the risk. Historically, Florida defined assumption of the risk to mean: whether (claimant) knew of the existence of the danger complained of; realized and appreciated the possibility of injury as a result of such danger; and, having a reasonable opportunity to avoid it, voluntarily and deliberately exposed [himself] [herself] to such danger. (Florida Jury Instruction 401.22g). In other words, you knew the risk and took it and cannot complain if you are harmed.

    If proved, assumption of the risk completely barred the plaintiff's recovery. In 1977, however, the Florida Supreme Court ruled that assumption of the risk was not compatible with comparative negligence and said instead that courts should apply comparative negligence principles. Blackburn v. Dorta, 348 So. 2d 287, 293 (Fla. 1977). But as the decision recognized, court decisions and treatises "have developed categories of assumption of risk. Distinctions exist between express and implied; between primary and secondary ; and between reasonable and unreasonable or, as sometimes expressed, strict and qualified." 348 So. 2d at 290. The ruling only applied to "implied" risk assumption. It explained that "express assumption of risk are express contracts not to sue for injury or loss which may thereafter be occasioned by the covenantee's [this would be Disney in our discussion] negligence as well as situations in which actual consent exists such as where one voluntarily participates in a contact sport. " The court later explained that because the "contact sports" rule is "based on waiver and is essential to protect the other participants from unwarranted liability for injuries due to bodily contact inherent in the sport" express assumption of the risk does not apply to "aberrant conduct in noncontact sports." Mazzeo v. City of Sebastian, 550 So. 2d 1113, 1116 (Fla. 1989).

    I think it safe to assume that going to WDW is a "noncontact sport." Not practically, perhaps, but as the Florida Supreme Court defines it. So, Disney's signs might accomplish two things: DIsney might be trying to tell guests that if they come, they have entered into an "express contract" which makes them, not Disney, solely responsible if they catch COVID-19 even if they argue Disney was negligent. But even if Florida court's say there was no express contract, since implied assumption of the risk is now part of comparative negligence, the language would essentially let Disney argue that Disney has made appropriate warnings about the risk and its severity (I can question whether this is really needed but then I've seen far too many stupid people youtube videos) and thus, by entering Disney property, Disney has fulfilled whatever duty it owes to the guest

    Or, I could be wrong. Again, I'm unlicensed in Florida. I welcome corrections or opposite views.
     

    V.B.

    Earning My Ears
    Joined
    May 11, 2019
    Well, considering we have watched people start fighting in stores over toilet paper, I fully expect that there will be some who will go in knowing the risks and still sue if they do get sick. I'm not saying everybody will, but we know it will happen.
     
    Last edited:

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    Those are relatively tame combated to the ones showing a person deliberately “coughing” in a store employee’s direction. I just hope Disney has a long retention period on its surveillance videos.
     

    maxiesmom

    The Mean Squinty Eye Works
    Joined
    Jul 6, 2004
    Just saw a post on Facebook on how many people at Disney Springs were just carrying a drink around, so that they didn't have to pull their mask up. Many people sitting around on benches without masks too. So many that the person who posted left after they had counted 30 guests without masks. If Disney posts a rule, and then doesn't enforce it, that could be how they get sued too.
     

    TiggerTrigger

    a.k.a. HouCuseChickie
    Joined
    Jul 16, 2010
    I could see parks being limited to resort guests in the early stages so they have more control. It wouldn't shock me if you wind up signing a C19 agreement at some point in the check in process so that Disney is held harmless for anything C19 related to your visit. I know it's not a fair comparison, but our neighborhood pools are opening this weekend and I had to sign all kinds of paperwork to hold them harmless if any of us get sick.
     

    hertamaniac

    WDW Local
    Joined
    Feb 9, 2017
    My question is if a guest claims they didn't see, understand (language barrier?), or acknowledge the sign.
     

    TheMaxRebo

    DIS Veteran
    Joined
    Jan 12, 2008
    Just saw a post on Facebook on how many people at Disney Springs were just carrying a drink around, so that they didn't have to pull their mask up. Many people sitting around on benches without masks too. So many that the person who posted left after they had counted 30 guests without masks. If Disney posts a rule, and then doesn't enforce it, that could be how they get sued too.
    Yeah, that is an interesting point. If Disney says face coverings are required (as they do in their "know before you go" information) but then don't enforce that rule does that break the implied contract with another guest who did follow the rules but got Covid-19 from someone who didn't

    Guess question is if Disney is legally required to enforce their rules or if that some won't follow the rules is part of the "risk" guests knowingly take when they come
     

    UOAP

    Mouseketeer
    Joined
    May 19, 2019
    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.

    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.... :sick::rolleyes1:stir:
    The warnings I've seen so far on websites from Disney (and Universal) are taken directly from the CDC: "Based on currently available information and clinical expertise, older adults and people of any age who have serious underlying medical conditions might be at higher risk for severe illness from COVID-19. " The problem is that the CDC then goes on to list the 9 biggest risk factors BEYOND AGE, a few of which are not well known by the public. One of the most important for non-elderly patients is obesity. As a hospitalist working with ICU patients, obesity was the single biggest risk factor (besides diabetes) for severe COVID younger patients and this has been established over and over in research studies. However, most obese people without diabetes or hypertension would never realize they were included in "serious underlying medical conditions" and would not know they were at risk from Disney (and Universal) warning signage. I think, at the VERY least, they need to direct guests to the CDC website for the list IN THE SIGN. It's very misleading otherwise. And Disney guests are most certainly going to have higher obesity rates than average, and average is already very high. Personally I would have them list the 9 risk factors in addition to age, as they list specific risk factors on ride warning signs (hypertension, pregnancy, recent surgery, etc).

    EDIT to ADD: TLDR: Having half the CDC warning on signs is more risky for Disney than including the full warning or at least directing guests to the full warning because half the warning is misleading and can lead to false assurance for a major high risk group.
     
    Last edited:





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