Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 5. Plaintiffs’ Conduct
Although alligators inhabited the area of The Landings before and after its establishment,
no person had ever been attacked until the night of October 5, 2007, when Williams, who was 83
at the time, went for a walk near one of the lagoons near her daughter’s home some time after
6:00 p.m. The following morning, Williams’s body was found floating in the lagoon. Williams’s
right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the
same lagoon, and, after the alligator was killed, parts of Williams’s body were found in its
stomach.
The record shows that, prior to the attack, Williams was aware that the property was
inhabited by alligators. Williams’s son-in-law testified that, on at least one occasion, he was
driving with Williams on property in The Landings when he stopped the car to allow Williams to
look at an alligator. Williams’s son-in-law also testified that Williams was, in fact, aware that
there were alligators in the lagoons at The Landings and that he believed that Williams had a
“normal” respect for wild animals. When asked whether he had ever discussed how to behave
around wild alligators with Williams, her son-in-law responded: “No. There was never—quite
frankly, there was never any reason to. I mean she was an intelligent person. She would—there
was no question in my mind that—I guess I have to answer that as it’s not like talking to a five
year old child . . . stay away from alligators.” In addition, Williams’s son recalled a similar
instance when he stopped the car to allow his mother to look at an alligator. At that time Williams
mentioned that she did not like alligators and did not want to go anywhere near them.
Generally, in premises liability cases, . . . . “‘[t]he true ground of liability is the
proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to
persons going upon the property. It is when the perilous instrumentality is known to the owner or
occupant and not known to the person injured that a recovery is permitted.’ . . .”
In this case, testimony shows that Williams was aware that wild alligators were present
around The Landings and in the lagoons. Therefore, she had knowledge equal to The Landings
entities about the presence of alligators in the community. . . . Nonetheless, Williams chose to go
for a walk at night near a lagoon in a community in which she knew wild alligators were present.
This act undisputably shows that Williams either knowingly assumed the risks of walking in areas
inhabited by wild alligators or failed to exercise ordinary care by doing so. . . .
The dissent, like the Court of Appeals, attempts to avoid this conclusion by arguing that
summary judgment for The Landings is precluded because there is no “competent evidence that
the decedent knew there were alligators over seven feet in size living in the community or living
in the lagoon in which [Williams’s] body was found.” While there is no doubt that Williams’s
death was a tragic event, Williams was not incompetent. A reasonable adult who is not disabled
understands that small alligators have large parents and are capable of moving from one lagoon to
another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that
wild alligators are present in a community, walks near a lagoon in that community after dark.
Judgment reversed.
BENHAM, J., dissenting.
I write because I respectfully disagree with the majority’s opinion reversing the decision
of the Court of Appeals to allow this premises liability case to go to a jury. . . .
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