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McGuinness Vs. Disney

A recent lawsuit filed against Walt Disney Parks and Resorts for $50,000 highlights the legal concept of negligence and the responsibilities companies have towards their customers.

Mr. and Mrs. McGuinness (the plaintiffs) visited Disney’s Typhoon Lagoon water park on October 14, 2019, to celebrate Mrs. McGuinness’ 30th birthday. She suffered injuries while riding the Humungu Kowabunga, a water slide that sends riders down a 214-foot drop in the dark.

The plaintiffs allege that Disney ought to know about the risk of the injury Mrs. McGuinness incurred, specifically as a woman. The suit stated that when a rider reaches the bottom of the slide and drops into the pool of water, the force of the water can push loose garments into the inner part of a person’s anatomy. Because of the anatomy of women, they are more at risk than men to experience such injury.

Mrs. McGuinness claims that despite following the instructions given by Disney, she suffered severe injuries. According to her, she received a gynecologic laceration to her anatomy and a tear to her urethra. She also claims that the injuries have caused her to experience pain, discomfort, and emotional distress. As the suit claims, her husband Mr. McGuinness has also suffered the loss of his wife’s care, comfort, consortium, support, and services.

Although the suit is a fresh case, it raises relevant legal concerns. 

What is Negligence?

Negligence is the failure to exercise the degree of care that a reasonable person would exercise under the same circumstances. Negligence can also be when a person fails to do what he ought to have done. Personal injury results from another person’s negligence.

What are the Elements of Negligence?

A victim has to prove four elements to establish that negligence has occurred. 

Each of the four elements must be proven.

From the case above, the plaintiffs are claiming that Disney breached that duty of care by failing to warn female guests specifically of the increased risk posed by the water slide and by failing to provide protective clothing to mitigate that risk, and as a result, injuries have been sustained.

Defenses to Negligence Claims

A negligence claim, like every other legal claim, has its defenses. This can be broken out over several aspects, as below:

  • Is there a time frame to file a negligence suit?
    The statute of limitations is a law that sets a time limit on how long a person has to file a lawsuit after an injury or other legal wrong has occurred. This can be raised as a defense.

    For example, a victim in Florida has to file a lawsuit concerning personal injury within four years of its occurrence or becoming aware of the injury.

    In the UK, the statute of limitations for personal injury is three years and six years for negligence.

    Singapore and South Africa have three years as the time frame to file a suit for personal injury, otherwise, it will be time or statute-barred.

    In Singapore, there is a 6-year window for negligence claims starting from the date when the cause of action occurred. Alternatively, there’s a 3-year limit from the earliest point when the claimant became aware that the cause of action originated.

    It is important to understand that there are exceptions to the statute of limitations and that each case is unique. This defense is not automatic as the same has to be raised by the defendant in court. Therefore, it is imperative to consult a professional lawyer to handle a suit as an expert in the field.
  • Who can be a party in a negligence suit?
    A lawsuit for negligence is brought by a person or persons who suffered injury or damage due to the defendant’s negligent behavior.

    Understanding the right parties for a suit is vital to ensure all interests are protected. However, joining the wrong party can be a waste of time and money.
  • What is volenti non fit injuria?
    This means “to a willing person, injury is not done”. It is a defense raised in a negligence suit, which implies that if a person voluntarily assumes the risk of harm, he or she cannot later sue for damages if injured. Proving this defense is not easy as there has to be proof that the victim was fully aware of the risk. Other factors may weaken the defense including age. The defense of volenti non fit injuria, can also depend on the terms and conditions or terms of use of a product or company. 
  • Liability waiver clause under the terms and conditions
    The liability waiver clause is an agreement between the company and the user of the products or services confirming that the user: 

    – is aware of the risk associated with the activity,
    – understands and acknowledges they may be injured, and 
    – will not hold the company responsible for the injury.

    The Terms and Conditions (T&Cs) provide the terms of use of a service or product, oftentimes to prevent abuse, limit liability, and set the governing law of a service or goods.

    However, the waiver of liability clause does not prevent the user from suing the company. The user may seek to determine the validity and enforceability of the clause. A valid liability clause prevents the user from seeking damages in court. It becomes imperative to maintain a valid liability clause. 

    Under the Florida case law, a valid waiver of liability must be clear, unambiguous, unequivocal, and specific. If the clause meets these criteria, it will be a great defense for the defendant.
  • Liability waiver clause in the case of Disney vs McGuinness
    The validity and enforceability of these T&Cs will be a key factor in determining the outcome of the case. Courts generally uphold such clauses, but there are exceptions. For instance, if the T&Cs are deemed to be unconscionable or if Disney failed to adequately inform guests of the risks involved, the court may rule in favour of the plaintiffs.

    The courts will consider the language of the waiver, whether specific details of the clause are readable, and whether the injury is a result of gross or willful negligence of an employee of the company. These may be used to declare a waiver clause invalid.

    The T&Cs or terms of use that guests agree to when entering the Disney Park will play a significant role as a defense in the negligence suit. 

    A question that might arise is whether the T&Cs or terms of use were clearly read to the plaintiffs. The plaintiffs claimed that riders are instructed to cross their legs at the ankles, but are not informed why their ankles need to be crossed, the importance of doing so, or the risks of injury if their ankles were to become uncrossed. 

    Disney provides a dress code policy on their website under the heading, “Know before you go”. This Policy prohibits certain wears for such adventure, thus, “Inappropriate swim attire, swim attire with buckles, rivets, zippers or exposed metal, and other sharp objects are not allowed on any of the attractions. Jeans (denim) and wetsuits (neoprene) are not permitted on the following attractions at Disney’s Typhoon Lagoon water park: Bay Slides, Humunga Kowabunga, Ketchakiddee Creek and Storm Slides.”

    If an instruction is given or there is a dress code policy in place, it is presumed to be the standard safety measure. Failure to adhere to the same is likely to cause injury. Where the users fail to adhere to the instructions or read the policy before using the water slide, it bears looking at whether they have or have not committed contributory negligence.

    Unfortunately for McGuinness, while riding, she lost control and her ankle became uncrossed due to the force of the water and injury was sustained as a result of this. 

    While T&Cs are usually written, it is unknown if they were read to the users, or in addition to the safety instructions if they were orally informed that Disney will not be held responsible for any injury sustained as a result of using the water slide.

    Companies should be aware that safety instructions are different from waiver liability clauses in the T&Cs, hence, to avoid future legal suits, customers are to be informed of all possible risks and waiver of liability.


Companies should be aware that they owe a duty of care to their customers. They should put in place relevant agreements or documents protecting them and govern their products’ usage. At the same time,

  • they should ensure that safety measures are put in place on the premises,
  • have warnings or risk notices boldly shown to potential users of their products, 
  • have valid and clear T&Cs visible to all users or guests, and
  • employ the services of an expert for legal or any other professional advice. Understand that only a lawyer will guide them properly.

Negligence is a legal concept that can be complex, knowing the right defenses can play a significant role in the case. It is important to consult with lawyers for any legal questions.

For legal representation, documentation, and advice, contact us.

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