People living in Florida might well know about the speed and strength of an alligator’s snap or of its ability to move quickly for short distances or about its feeding times. Invitees may well not. Guests at a facility may not appreciate the generalities of signage. They might misinterpret ‘no swimming’ signs to understand that wading is allowed or figure that swimming is barred just because there is no lifeguard on duty or because boats traverse the water or because the water might look a little bit polluted.
Here is where a lawyer may be able to offer even more specific guidance by reviewing the appropriate law and an array of signage that was deemed sufficient to preclude disastrous liability and perhaps some that wasn’t.
Premises Liability Refreshers, Best Practices, Employee Training, and Common Sense
A vulnerability assessment might not merely identify areas where there is risk — the alligator-prone pond, the shaky railings on the stairs, the leaky ceiling giving rise to mold and mildew — but also corporate culture inhibitors. Are employees afraid to speak up? Are their concerns dismissed if they do? Are employees so conditioned to the dangers that they disregard the vulnerabilities of others who might not know what to do if, say, they see an alligator approaching? Are employees who do speak up the ones who are overlooked for promotions and raises? Do senior leaders have open-door policies, or is there a system in place for complaints or concerns to be raised anonymously?
No matter the business, the risks and liabilities associated with it are not limited to conflicts with wildlife. Depending on the type of business involved, it may need to address the problem of drunken or disorderly guests, the overall safety of the premises (Are there sufficient life jackets on the boat? Fire extinguishers in stairwells? Lighting in the hallways? Strong enough locks on doors?), and the appropriateness of employees (Are convicted child molesters interacting with juveniles? Is someone with anger management issues working in customer service? Is someone with a few stints at rehab in her background operating the rides?). Of course, any business will need to comply with employment laws, may be called on to negotiate agreements (in hospitality, with spas, or kiosks, or restaurant managers), and will need to address the safety of its customers (Is there any security at that night club? Is food at that grocery store handled safely? Is the parking lot well-designed and lighted?).
The goal, of course, is to comply with applicable laws (whether federal, state, or local), to identify potential legal hazards, and to prevent or minimize associated risks. This might be done by taking certain actions to fortify a business (“let’s fence in that pond and keep guests far away from it”), by modifying signage (“danger-alligator habitat”), by revising procedures and developing best practices (if a guest enters water where swimming is banned, the guest will be directed to exit the water by an employee; if an alligator is sighted in a body of water adjacent to an amusement park ride, the ride will be shut down and the alligator will be removed), by training employees (“here’s what to do if an alligator is sighted on the property”), and by conducting drills and making sure that procedures taught in training are actually followed.
Another Time, Another Alligator, A Different Result?
A lawyer might make business clients aware of how serious the consequences can be by discussing pertinent caselaw and explaining what it could mean for the client company. So, for instance, someone reading Palumbo v. State Game and Fresh Water Fish Commission, 487 So. 2d 352 (Fla. Dist. Ct. App. 1986) rather casually might think that the decision deeming a university not liable when a student was attacked by an alligator in a lake owned by the university where a “no swimming allowed” sign was posted is a clear-cut indicator that such signs are sufficient in similar scenarios involving, say, an amusement park with a man-made lagoon. A lawyer might help a client distinguish the decision by noting that the student in the Palumbo case actually was swimming, not wading, in the lake when he was attacked. A lawyer might help a client distinguish the decision by noting that there was other signage around the park at issue warning about alligators. A lawyer might help a client distinguish the decision by noting that there had been no similar incidents at this park. Suddenly, what might have seemed clear about the law and its signage requirements regarding alligator dangers might be as murky as the water the reptiles live in.
Companies of all sorts and their insurers may be well-served to reassess their own vulnerabilities in light the death of that two-year-old at Disney. Their lawyers may well be able to help them prepare for accidents and to mitigate any hazards and to overcome resistance to capital outlays. Of course, a lawyer embarking on such an endeavor will need to the attorney-client privilege in mind to protect confidential communication.