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

[UOAP]

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.

If they do contact tracing and you have 500 people who test positive who all went to WDW the week prior, it will be pretty easy to establish, just like they did for people who caught it at a conference.

 

[jcb]

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

Let's start with a basic point. Courts have long rejected the argument that "I did not read" the agreement before I signed it.

While it is true that one cannot by a false representation induce carelessness upon another's part in the matter of signing papers and then profit by such negligence, the policy of the law is that he who will not reasonably guard his own interest when he has reasonable opportunity to do so, and there is no circumstance reasonably calculated to deter him from improving such opportunity, must take the consequences. Where there is such inattention amounting to gross carelessness on the one side and misstatement upon the other and but for the former the latter would not be effective and loss occurs to the inexcusably negligent one, he is remediless. ‘Not because the wrongdoer can plead his own wrongdoing as an excuse for not making reparation, but, first, because the consequences are attributable to inexcusable inattention of the injured party; and second, because the court will not protect those who, with full opportunity to do so, will not protect themselves.’​

George E. Sebring Co. v. Skinner, 100 Fla. 315, 322–23 (1930) (my emphasis).

The case concerned whether a clause should have been added to the agreement the party signed. The drafter said the clause would be included but didn't and the signer signed the document without reading it. Tough, the court held. As the quote implies, there are exceptions, but they typically involve undue pressure, fraud, or microscopic print in long consumer type of documents.

I don't think the language barrier defense will work. If you visit another country, you're subject to the laws of that country. (So, even if you can't read all the Italian street signs, you're going to have to pay the traffic violation ticket from Milan for driving in a bus lane at the wrong time of day. Trust me.) Also, all the theme parks have kiosks with foreign language maps. I wonder if the maps have been modified to include the warning.

The "did not see" or "acknowledge" rule is similar. As a general rule, testimony or evidence (photos or surveillance video) showing the signs were at entrances will defeat a claim by a guest that the guest did not "see" the sign. There's a difference between proving signs were not present and another to argue you didn't see the signs.

I am curious about how Disney will provide warnings to visually impaired guests. Disney has braile park maps in each park. Most are a little bit away from the entrance. The Epcot map was in what is now a construction zone (close to the pin traders stand by SSE).

 

[jcb]

If they do contact tracing and you have 500 people who test positive who all went to WDW the week prior, it will be pretty easy to establish, just like they did for people who caught it at a conference.

I'm not sure I follow this. First, contract tracing of WDW guests would not be "easy." I understand you were not saying this directly but it is implied. Second, taking your "500 people" assertion at face value, it seems statistically questionable without some evidence regarding the size of the pool. If 10,000 (or even 5,000 or 2500) people enter Epcot tomorrow, and 500 of those test positive two weeks later, the statistics tell us very little, in fact, the defense lawyer in me would argue it proves lack of causation. (I am a lawyer, not a statistician, but I am familiar with court decisions addressing statistical evidence and proof of the size of the pool is a fundamental prerequisite.) To make a finer point, I'm not sure (here my knowledge has limits) that simply showing 500 of 10000 park attendees on a specific day tested positive would itself prove anything without also knowing how many people were tested. Were all park attendees tested?

Even so, I generally agree that it would be possible to prove a prima facie case of causation by showing a sizable part of the tested pool contracted the virus. I say prima facie case because statistics alone are rarely sufficient to conclusively prove anything. Even where statistics show some correlation, there will still be arguments that, in individual cases, the person could have contracted the virus somewhere else.

 

[UOAP]

Because that's what contact tracing does. It determines what the cases had in common. In many cases we can isolate the exact individual (such as a CM) who was the source of the spread. You can say "but they went other places" but a cluster is different than a random case. We have already identified cluster sources for many COVID clusters. I don't think Disney can rely on "hey those people could have caught it anywhere and all this public health science is bogus" as a defense.

ETA we also can isolate certain genome sequences of COVID showing, for example, that NYC cases did not start from China but from Europe. You'd be amazed how precise we can be. Yay science.

 

[godisney14]

I have now seen signs at many business entrances that say they are not liable in any way if a customer contracts the virus while on their premises.

 

[Anthony12345]

If they can, they shouldn't. I mean, can you sue Disney if you catch a cold in the parks? Of course you cant.

 

[godisney14]

If they do contact tracing and you have 500 people who test positive who all went to WDW the week prior, it will be pretty easy to establish, just like they did for people who caught it at a conference.

Contact tracing as how the programs are set up right now in the US do not work how you may be thinking it works.
In other countries around the world, especially in Asia, it is done using GPS/cellular tracking, CCTV, and credit card history. It’s automated.

In the US, it’s done completely manually by volunteers and workers calling patient 0 and asking him/her for a list of phone numbers to known people who the patient was in close contact with. It’s nearly impossible to be effective for any contact tracer to be working on a case with more than a couple dozen contacts of a patient. And you never know who will decline the service out of privacy concerns.

You know what’s funny? The people claiming privacy are the same people giving up more privacy through their cell phone when they download various apps from the Apple App Store and Google Play store, or when signing up for store rewards programs. Almost all phone apps these days collect your location info at minimum.

 

[HashberryOTG]

Let's start with a basic point. Courts have long rejected the argument that "I did not read" the agreement before I signed it.

My law profs loved to repeat: ignorance of the law is no excuse. Accountant, not lawyer.

The nerd in me loves your posts @jcb ! Very well written and educational!

 

[jcb]

Now you are changing the question. The rules are different if the exposure source is a CM than it is for another guest. Disney is vicariously responsible for its employee's negligent conduct. It is not vicariously responsible for guest conduct. (Note I'm assuming that a CM would be negligent merely by showing up for work with COVID-19 even though they are asymptomatic. But I doubt a court would say the CM was negligent.)

I suspect the chances of isolating the source of the spread dramatically decreases with population size and relative guest anonymity.

You believe contact tracing is a great medical tool. I agree, for what it is worth (I don't claim medical knowledge). But not every great medical tool lends itself to proving legal causation. For example, the CDC describes contact tracing as primarily meant to look for people who were exposed to a source.

• In contact tracing, public health staff work with a patient to help them recall everyone with whom they have had close contact during the timeframe while they may have been infectious.
• Public health staff then warn these exposed individuals (contacts) of their potential exposure as rapidly and sensitively as possible.

https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html
I suppose it could be used the other way - to find out where an exposed person was exposed. Even so, that seems to me to require access to data that most lawyers will not have.

Take the wheelchair injury lawsuits I've written about previously. A guest claims another guest in a wheelchair or scooter ran over them while at WDW. They sued WDW to get the identity of the other guest. It was a tedious process and the injured guest could, at least, say where the incident occurred. Disney eventually coughed up the guest's identity and was dropped from the lawsuit.

Here, I doubt WDW will be willing to release the names of all its guests over the course of another guest's vacation period. Disney refuses to release attendance figures and routinely asks courts to prevent these numbers from being publicly available. But even if a court ordered Disney to produce guest identities (which is highly doubtful), how would the lawyers use the data? There's no publicly available database of COVID-19 positive individuals (so far as I know). Also, the CDC says contact tracing should not identify the source by name. So, short of getting a very lucky hit on social media, do lawyers sue all the other WDW guests to find out if they were positive or later tested positive? If they did, they would probably be sanctioned for filing frivolous lawsuits.

Again, right now, I don't see a court holding Disney vicariously liable because it let in an asymptomatic guest who had COVID-19. I don't know of a legal principle that permits holding a company like Disney vicariously liable for a guest's conduct. Disney is responsible for its own negligent conduct. So short of Disney staying closed, I don't think courts are going to say Disney is liable even if one guest could prove another asymptomatic guest caused them to contract COVID-19.

Disney could be liable if someone could prove it let in a symptomatic guest. Again, I'm not sure how a lawyer would obtain proof of this but they can try.

The really interesting question is what will it take before courts will hold companies like Disney, Universal or even the Chicago Symphony Orchestra liable because they decided not to conduct COVID-19 testing on guests or visitors. That question fascinates me because it is a standard of care (or duty) question. The standard of care in tort law turns on utility or relative cost. As one court put it, the standard of care balances the relative harm against the utility of the desired result (this can be a financial cost or personal preference). McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 659 (7th Cir. 1998) ("without evidence that a holding temperature of 180° F is of little worth to consumers, plaintiffs cannot show that the choice of a high temperature makes coffee defective").

So if you want good tasting hot coffee - meaning coffee held at 180 degrees (slightly hotter than the industry standard 170 degrees), you take the chance that you might get hurt worse than if you limited your custom to shops that served coffee at 140 degrees. Contrary to popular belief, courts have actually held that serving hot coffee does not make the coffee (or the coffee making machine) inherently dangerous.

Coffee is not the greatest analogy. The severe health risks associated with contracting COVID-19 will likely warrant a greater duty. But there is still a need for balancing the risk against utility. When testing becomes more available, I would expect courts will hold Disney and other companies to a greater degree of care, i.e., the company's liability will increase if it does not conduct readily available accurate tests.

Now, let's take this positivity to another even more absurd level. We'll assume that as of July 1, 2020 (just in time for the July 4 holiday) accurate tests for COVID-19 become readily and cheaply available. Disney then mandates all guests take the test (increasing ticket prices to pay for the test, of course) before entering a park. Where will Disney do the tests? There aren't exactly private locations avaialble to all guests. Even if WDW conducted tests at the resorts, lots more folks stay off property. I suspect WDW would have to test guests before they leave their room to board a Disney bus or, for those that don't take the bus, when their vehicle arrives at the parking lot or drop off location. That sounds like a logistical nightmare but its theoretically doable.

So what is Disney's obligation when a guest tests positive? Sure, WDW excludes that guests, and almost certainly all the other guests in the same "party." But what does Disney do (what must it legally do) with other guests who are not in the "party" who may have been standing near the positive guest or who may have come in contact with that guest?

 

[hertamaniac]

The "did not see" or "acknowledge" rule is similar. As a general rule, testimony or evidence (photos or surveillance video) showing the signs were at entrances will defeat a claim by a guest that the guest did not "see" the sign. There's a difference between proving signs were not present and another to argue you didn't see the signs.

Thank you for the detailed response. I guess the word "implied" comes to mind.

Is it implied that by placing signage at an entrance (or entrances) that the guest agrees to the terms/warnings/cautions listed on said sign? It certainly appears that way to me, but that leads me to a question of social distancing. I could not tell by various photographs if these signs allow for social distancing while reading them. Is it a situation whereby reading these signs actually have the reader violating the signs warnings (not these WDW specific ones)? It's a weak position for sure, however I could see someone/somewhere stating that the signage location didn't allow for adequate social distancing measures while trying to read/understand them.

In thinking further, I wonder if an entrance verbal response is even remotely feasible (yes, a massive undertaking):

CM: "Did you read the below sign?"
Guest: Y or N
CM: "Do you understand the conditions of the below sign?"
Guest: Y or N

With photo/surveillance video, maybe you have an audit trail provided you have a long enough loop.

My takeaway is a guest could be entrenched on their smartphone with MDE and be completely oblivious to the sign(s), but doesn't necessarily relieve them of responsibility.

 

[smcabee]

You can have all the warnings in the world but if Disney requires masks in their conditions of entry and if those rules are not enforced as Ive seen in some videos and photos coming out of Disney Springs, one could easily claim that Disneys lack of rule enforcement was the cause of the infection. Would it work? Who knows but I see that happening pretty quickly after opening.

 

[UOAP]

Contact tracing as how the programs are set up right now in the US do not work how you may be thinking it works.
In other countries around the world, especially in Asia, it is done using GPS/cellular tracking, CCTV, and credit card history. It’s automated.

In the US, it’s done completely manually by volunteers and workers calling patient 0 and asking him/her for a list of phone numbers to known people who the patient was in close contact with. It’s nearly impossible to be effective for any contact tracer to be working on a case with more than a couple dozen contacts of a patient. And you never know who will decline the service out of privacy concerns.

You know what’s funny? The people claiming privacy are the same people giving up more privacy through their cell phone when they download various apps from the Apple App Store and Google Play store, or when signing up for store rewards programs. Almost all phone apps these days collect your location info at minimum.

There is different contact tracing in different areas. It's not like there is some general federal system in place so you can't make sweeping generalizations. In some areas it is extremely thorough. In others not. Disney should not rely on some areas not being thorough to hope that a cluster cannot be identified.

 

[UOAP]

Now you are changing the question. The rules are different if the exposure source is a CM than it is for another guest. Disney is vicariously responsible for its employee's negligent conduct. It is not vicariously responsible for guest conduct. (Note I'm assuming that a CM would be negligent merely by showing up for work with COVID-19 even though they are asymptomatic. But I doubt a court would say the CM was negligent.)

I suspect the chances of isolating the source of the spread dramatically decreases with population size and relative guest anonymity.

You believe contact tracing is a great medical tool. I agree, for what it is worth (I don't claim medical knowledge). But not every great medical tool lends itself to proving legal causation. For example, the CDC describes contact tracing as primarily meant to look for people who were exposed to a source.

• In contact tracing, public health staff work with a patient to help them recall everyone with whom they have had close contact during the timeframe while they may have been infectious.
• Public health staff then warn these exposed individuals (contacts) of their potential exposure as rapidly and sensitively as possible.

https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html
I suppose it could be used the other way - to find out where an exposed person was exposed. Even so, that seems to me to require access to data that most lawyers will not have.

Take the wheelchair injury lawsuits I've written about previously. A guest claims another guest in a wheelchair or scooter ran over them while at WDW. They sued WDW to get the identity of the other guest. It was a tedious process and the injured guest could, at least, say where the incident occurred. Disney eventually coughed up the guest's identity and was dropped from the lawsuit.

Here, I doubt WDW will be willing to release the names of all its guests over the course of another guest's vacation period. Disney refuses to release attendance figures and routinely asks courts to prevent these numbers from being publicly available. But even if a court ordered Disney to produce guest identities (which is highly doubtful), how would the lawyers use the data? There's no publicly available database of COVID-19 positive individuals (so far as I know). Also, the CDC says contact tracing should not identify the source by name. So, short of getting a very lucky hit on social media, do lawyers sue all the other WDW guests to find out if they were positive or later tested positive? If they did, they would probably be sanctioned for filing frivolous lawsuits.

Again, right now, I don't see a court holding Disney vicariously liable because it let in an asymptomatic guest who had COVID-19. I don't know of a legal principle that permits holding a company like Disney vicariously liable for a guest's conduct. Disney is responsible for its own negligent conduct. So short of Disney staying closed, I don't think courts are going to say Disney is liable even if one guest could prove another asymptomatic guest caused them to contract COVID-19.

Disney could be liable if someone could prove it let in a symptomatic guest. Again, I'm not sure how a lawyer would obtain proof of this but they can try.

The really interesting question is what will it take before courts will hold companies like Disney, Universal or even the Chicago Symphony Orchestra liable because they decided not to conduct COVID-19 testing on guests or visitors. That question fascinates me because it is a standard of care (or duty) question. The standard of care in tort law turns on utility or relative cost. As one court put it, the standard of care balances the relative harm against the utility of the desired result (this can be a financial cost or personal preference). McMahon v. Bunn-O-Matic Corp., 150 F.3d 651, 659 (7th Cir. 1998) ("without evidence that a holding temperature of 180° F is of little worth to consumers, plaintiffs cannot show that the choice of a high temperature makes coffee defective").

So if you want good tasting hot coffee - meaning coffee held at 180 degrees (slightly hotter than the industry standard 170 degrees), you take the chance that you might get hurt worse than if you limited your custom to shops that served coffee at 140 degrees. Contrary to popular belief, courts have actually held that serving hot coffee does not make the coffee (or the coffee making machine) inherently dangerous.

Coffee is not the greatest analogy. The severe health risks associated with contracting COVID-19 will likely warrant a greater duty. But there is still a need for balancing the risk against utility. When testing becomes more available, I would expect courts will hold Disney and other companies to a greater degree of care, i.e., the company's liability will increase if it does not conduct readily available accurate tests.

Now, let's take this positivity to another even more absurd level. We'll assume that as of July 1, 2020 (just in time for the July 4 holiday) accurate tests for COVID-19 become readily and cheaply available. Disney then mandates all guests take the test (increasing ticket prices to pay for the test, of course) before entering a park. Where will Disney do the tests? There aren't exactly private locations avaialble to all guests. Even if WDW conducted tests at the resorts, lots more folks stay off property. I suspect WDW would have to test guests before they leave their room to board a Disney bus or, for those that don't take the bus, when their vehicle arrives at the parking lot or drop off location. That sounds like a logistical nightmare but its theoretically doable.

So what is Disney's obligation when a guest tests positive? Sure, WDW excludes that guests, and almost certainly all the other guests in the same "party." But what does Disney do (what must it legally do) with other guests who are not in the "party" who may have been standing near the positive guest or who may have come in contact with that guest?

Disney doesn't need to release any information. The patients will do it. I'm not claiming to be a lawyer. I AM claiming to be a scientist. Disney may or may not be liable if a cluster comes from Disney. My point is that if they are hoping that the science isn't there to be able to identify a cluster they are 100% incorrect. They need to come up with a different defense.

 

[godisney14]

There is different contact tracing in different areas. It's not like there is some general federal system in place so you can't make sweeping generalizations. In some areas it is extremely thorough. In others not. Disney should not rely on some areas not being thorough to hope that a cluster cannot be identified.

Can you give some examples then? Sounds like you have a better idea of what different forms of contact tracing looks like in the US. Please do explain then.

 

[UOAP]

Can you give some examples then? Sounds like you have a better idea of what different forms of contact tracing looks like in the US. Please do explain then.

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/spheres.html
The virus leaves a genetic footprint as it spreads and we are getting much better at sharing these data across various sites. Like I said, I recommend giving up on the "science isn't there to identify a cluster" as a legal argument because it is simply not correct.

 

[TheMaxRebo]

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/spheres.html
The virus leaves a genetic footprint as it spreads and we are getting much better at sharing these data across various sites. Like I said, I recommend giving up on the "science isn't there to identify a cluster" as a legal argument because it is simply not correct.

Yeah, I don't think Disney would rely on or even really consider using an argument of "well, you can't definitely track it back to us!"

I think they are relying on the "we are putting in regulations and restrictions per guidelines of the CDC, etc. - but it is still a virus we can't fully control and if you choose to come and get sick, well, tough cookies"

 

[jcb]

Disney doesn't need to release any information. The patients will do it. I'm not claiming to be a lawyer. I AM claiming to be a scientist. Disney may or may not be liable if a cluster comes from Disney. My point is that if they are hoping that the science isn't there to be able to identify a cluster they are 100% incorrect. They need to come up with a different defense.

I’m still not seeing how this is anything more than a patient saying I have COVID-19 and I went to WDW three weeks ago. I don’t follow your statement that the “patients will do it.” The current patient sure, but how will that patient know who exposed them?

While courts have embraced DNA testing as probative evidence, evidence that relies on the genetic footprint of a virus must still need to be statistically significant. DNA tests are admissible because of the very long odds against two people having identical DNA. It won’t be enough to say that we know this virus‘s DNA was present in central Florida. Unless DNA tests permit tracing the virus in an exposed person back to a specifically identifiable exposure source it will be of little use in litigation. Perhaps that is what you are saying. As I said, I can’t tell.

I think you are also trying to ”respond” to arguments that haven’t necessarily been made. I’ve never taken the position that proving causation from WDW would be impossible or that the science isn’t there. I’ve left open the possibility that, however factually difficult it might be, that someone might be able to prove they were exposed to the virus at WDW. Causation is an interesting topic but it relies heavily on facts and at this point, we are largely speculating about those facts. My primary point was to address the legal issues that exist even if someone could prove exposure at WDW.

 

[minthorne]

@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

I think the sign on the left should make the alert from Metal Gear Solid noise when anyone gets close.

 

[jcb]

The signs, yes. Those are what prompted creating this thread. I’m assuming signs will be at park entrances at a minimum. I suspect the sign in this photo is at one of the escalators at Disney Springs (at least there appears to be an escalator in the background).

adding the warning to The MDE app is smart. If it were my client, I’d encourage prominent sign placement throughout the parks.

you can, however, go too far. Too many warning signs and they start getting ignored.

Saying “caution this coffee is hot“ is just as good as “this coffee is served at 180 degrees F and if it comes into contact with you skin, it could cause you serious harm.”

I don’t know about metal gear. I assume it is a proximity alarm. I sure hope @WebmasterJohn doesn’t find out about it.

 

[Heather07438]

2 points stick out for WDW/DL to protect themselves-

• Taking the reasonable measures they can to reduce spread is a big step. They cannot be expected to completely remove the threat; they must try to significantly reduce the potential for mass spread. Check the legal wording around norovirus on cruises for the limits of accountability once due diligence is met. While not exactly the same, it shares alot and sets some precedent.
• The Covid warning signage needs to convey some people are more at risk than others and list those groups. Without that they run the risk that vulnerable people who get severely or worse sick claim: The park operating with large attendance made them not fully appreciate the increased risk to them as a more vulnerable individual.

Thomas' English Muffins needed to change the packaging to clearly indicate the muffins need to split before toasting. You really need to CYA when it comes to liability in the US. Bigger pockets make bigger targets.