A man and his wife were assured her food at a Disney park restaurant were free of allergens. It wasn’t and she died and Disney says he can’t sue because a Disney Plus account he has signed up for has an arbitration clause. That just pure 21st Century Capitalism right there.
I personally assume this is the typical lawyer technique of trying even the most unlikely things and see if it will stick. It would not have been anticipated that anyone would even notice, like many other absurd claims.
I suppose it’s typical lawyer stuff, but even so, it’s insane to think that agreeing to a trial of Disney+ means you can never, ever, for the remainder of your existence sue Disney for any reason.
They would be on slightly firmer ground if the disclaimer was on a park ticket, and something happened inside the park, while the person was using that park ticket. This also didn’t happen, as the restaurant is not part of the ticketed park experience.
Anyone know the details? Like, was she allergic to nuts and they put a handful into her meal, or was it more like she’s allergic to shellfish and they used a pan that was previously used for shellfish?
My sister has a lot of allergies, and one of the thing she loved was how they accommodated literally all of them at Disney World, making sure she had something wherever they went.
I hope this doesn’t affect them offering that.
The articles I’ve read all said nuts and dairy.
One did state she ordered scallops, corn fritters, broccoli and onion rings. Any breading mix could contain nuts and/or dairy.
The lawyer I follow on YouTube talked about this, and he mentioned that the other claim by Disney is that the man purchased the tickets online through their site, and agreed to the same conditions.
The lawyer really disagrees with mediation, because he feels it’s not really unbiased.
There will be a number of issues that will need to be resolved in this case.
And this is why EULA are garbage and should legally be garbage.
The lawyer who presented this should be disbarred and Disney should be fined something huge for this stupidity. Just trying this ploy should be used against them in the wrongful death trial. Treat it as basically an admission of guilt.
The details are in the article I linked to. They were assured multiple times the food was okay even though there were indications it wasn’t but the assurances made them think it was safe and she then died.
If I prepared a meal and one of the guests told me that cumin makes them get hives, I’d try my best to not serve them anything with cumin in it. If one of the guests told me fennel would kill them, I’d ask them to bring their own food.
However, if your restaurant advertises that they accommodate diners with food allergies, you can’t ask them to bring their own food.
This restaurant is not part of the ticketed area of Disney. It’s in a separate area that does not require tickets.
Is it worse publicity for Disney to pay out a wrongful death suit, or to pull heartless lawyer tricks to refuse? It can’t just be about the costs for just this case. It looks terrible for them to be trying to dodge this, but maybe it’s worse for people to say Disney has paid out x number of wrongful death cases. They’d want to keep x as low as possible.
Nitpick. Arbitration, not mediation. And I agree, it’s often very unfair. (not always, but often)
The deaths would still make the news. It looks better to step up, accept responsibility rather than come up with bullshit to duck out. -
Though in this case, does Disney have any responsibility just because it leases out the property to a non-Disney business?
Multiple layers of liability evasion does sound typical.
Disney is (typically) very good at this. I’m an annual passholder, and one of the Facebook groups I follow often has posts asking about how to manage food allergies. The answer is almost always that you just need to ask to talk to the chef wherever you are eating, and they’ll make sure it’s taken care of. It’s a thing they normally do very well.
Except that (as noted by someone upthread), the restaurant is in an area that you don’t need to have a ticket to get to. It’s in a publicly accessible shopping area. I wouldn’t think the tickets would be any more relevant that the Disney+_subscription. (But I’m not a lawyer)
It has to be one or the other?
They can’t legally defend themselves without making BS arguments?
So the problem is that there is a federal law, the Federal Arbitration Act (FAA), which basically says courts must defer to arbitration agreements. It’s not a matter of discretion. It’s not up to the court to say this is unfair or one sided, therefore invalid. The court can only say whether the agreement is valid and whether the dispute triggers the agreement. If yes and yes, off to arbitration with you.
The underlying rationale for the law is that arbitration is expedient and saves resources, but the drawbacks depending on the rules specified in the agreement may include the inability to conduct class actions, lack of a jury, secrecy, fees (often both parties must share the thousands per day paid to the arbitrator), lack of explanation for the decision, inability to appeal on the merits, unequal familiarity with the arbitrator, &etc.
Television judges are arbitrators, for those unfamiliar with the term, so it’s not like the concept is wholly foreign to the public.
It is an open question whether so-called “infinite” scope arbitration agreements bearing on wrongful death cases are so unfair or one sided as to be unconscionable, and therefore invalid.
The strongest argument in my opinion was struck down by the Supreme Court in Marmet Health Care Center v. Brown, 565 U.S. 530 (2012). There the plaintiffs alleged the nursing home’s negligence caused injuries and even deaths, and state law prohibited binding arbitration provisions for such tort claims, but the nursing home pointed to the agreement and said the federal law overrules state law. The Supreme Court of West Virginia tried to reason that the FAA had an implicit exception for torts, and alternatively, that arbitration for things like wrongful death is unconscionable on public policy grounds (pointing to the state law). The U.S. Supreme Court held that the FAA is comprehensive and does not have categorical exceptions for wrongful death &etc, rejected the public policy argument on the basis that the state law is pre-empted by the FAA and is therefore void, and sent the case back to West Virginia.
There may still be room however to attack the scope of an arbitration agreement. For example, consider the Florida Supreme Court case Seifert v. U.S. Home Corporation , 750 So. 2d 633 (1999). Here is the Florida Bar’s summary: “the arbitration clause in a residential construction contract did not require the customer to arbitrate a wrongful death action against the builder. The plaintiff’s decedent died when carbon monoxide from a car left running in the garage entered the house through ducts leading from the garage. The arbitration agreement in the parties’ contract covered ‘[a]ny controversy or claim arising under or related to this [a]greement or the [p]roperty.’ The court reasoned that the claim was a tort action that did not arise out of any warranty in the parties’ contract.”
In this case you have a number of reasons a court might find the arbitration provision inapplicable. One, it was the husband who made these agreements in his individual capacity, but the plaintiff is technically the estate of his wife. Two, there is the problem of the scope of the agreements. It is a legal fiction (assumption) that people read contracts they agree to, but even so. It’s a lot easier to make the public policy argument that someone who subscribes to a Disney+ trial would not reasonably interpret the arbitration provision as applying to a wrongful death action not connected to the Disney+ service three years later. Nor that a provision given with a park ticket would be binding for a dispute unrelated to the ticket or the park. Contrast with the Marmet case, where the alleged tort fell clearly within the scope of the nursing home services provided by the agreement.
However there was a case in Nevada a couple years ago that is somewhat similar, Airbnb v. Rice, 518 P.3d 88 (Nev. 2022). A man was shot dead on his way to a party at a property someone else had rented from Airbnb. The twist was that the victim also had an Airbnb account, although he didn’t use it in that instance, and the terms of service contained a provision delegating the question of arbitrability itself to an arbitrator. Relying on U.S. Supreme Court precedent, the Nevada Supreme Court forced the case into arbitration.
Delegation of arbitrability is where the service agreement states that if there is a question over whether or not a dispute triggers the arbitration provision, the parties agree to let the arbitrator decide that instead of a court. With this provision, the only thing left for a court to decide is if the agreement is valid. Even if, as the Supreme Court wrote in Henry Schein v. Archer & White Sales (2019), the arguments for arbitration are “wholly groundless”. You usually don’t find this “provision” in the text of the agreement itself, but rather in the arbitration rules incorporated by reference. For example the Disney+ terms of service (which from what I can tell is the same document for all Disney services including park services) incorporates the rules of the arbitration forum, ADR Services, Inc. ADR’s rules in turn state that “Unless the issue of arbitrability has been previously decided by the court, the arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the arbitration agreement.” So Disney does in fact have such a delegation clause.
Again, it is a legal fiction that you have read all of this and consciously agreed to it.
~Max
Pace Max_S, I am not fully following that explanation nor understanding Disney’s legal options here, but I agree with the poster above who said the bad publicity cost has got to be greater to Disney than just paying out this particular lawsuit. Many people are going to avoid signing up for Disney Plus over this, for a long long time.
I haven’t looked at the court filings but I think the emphasis on Disney+ is coming from the defense and the media who picked up on that. Disney seems to have the same terms of service document for all their services, probably as a way to simplify the legal side of things for everyone.
That is to say, Disney is saying we have a long and continuing relationship with you under this agreement and Disney+ is only one bit of evidence of this relationship. Disney points at least to the tickets bought just before the incident and I would guess they’d bring up a parking pass, wifi access, the websites for the theme parks, the website of Disney Springs, possibly the website of the restaurant, the virtual menu of the restaurant. Disney is saying to the consumer that if you want to do anything with Disney, you agree to arbitration. As is standard practice with literally everything.
For example I moved into a rental this month. One condition of the lease was, I have to give up my right to a jury trial and agree to arbitration. The rules of arbitration state that I have to pay fees up front, which would be a $225 to file the case, $700 plus $150/hr for the arbitrator, and $250 per hearing. So if for example my air conditioning unit breaks and the landlord refuses to fix it, and I’m sitting in a 90 degree apartment, if I want to sue I’ll need to put up $1000+.
The contract gave me 30 days to opt-out of the arbitration provision, which I did. Disney’s agreement also gives you 30 days to opt-out of the arbitration provision.
~Max