Disney seeks to dismiss wrongful death lawsuit over widower’s Disney+ free trial

[Marcel Birgelen]

Disney seeks to dismiss wrongful death lawsuit over widower’s Disney+ free trial

Man says wife died of allergic reaction at Disney World but company claims streamer’s terms block him from filing suit

Attorneys for Disney World are seeking to dismiss a wrongful death lawsuit brought by a husband over the death of his wife last year because of the terms and conditions he agreed to when signing up for Disney+ streaming service several years earlier.

In February of this year, Jeffrey Piccolo filed a wrongful death suit against Disney on behalf of his wife, Dr Kanokporn Tangsuan, a medical doctor from New York who died last year. His lawsuit claims that her death was a result of suffering an allergic reaction while dining at a resort restaurant in Disney Springs at the Walt Disney World Resort in Florida.

According to court filings, because Tangsuan had a severe allergy to dairy and nuts, Piccolo claims that he and his wife both questioned the restaurant waiter numerous times when they dined there last year about allergen-free food. He alleges they “were assured that her order would be allergen free”.


But, shortly after eating dinner, Piccolo claims that his wife suffered a “severe acute allergic reaction”, and died later that day on 5 October. The medical examiner’s investigation “determined that her cause of death was anaphylaxis due to elevated levels of dairy and nut in her system”, the lawsuit against Walt Disney Parks and Resorts states. Piccolo is arguing the wait staff was negligent, and is suing Disney for damages exceeding $50,000, per the complaint.

Disney, in a court filing reviewed by the Guardian, has responded and argued that the case ought to be dismissed and settled out of court because Piccolo agreed to the company’s terms of use – which state that users agree to settle any disputes with the company out of court via arbitration – when he signed up for a one-month free trial of Disney+ in 2019, and again in 2023, when he purchased the Disney+ theme park tickets using his Disney account.

Attorneys for Disney claim that the Disney+ terms state: “When you create a Disney+ or ESPN+ account, you also agree to the Walt Disney Company’s Terms of Use,” which “govern your use of other Disney Services”. The services include “sites, software, applications, content, product and services”, which include the Disney Parks and Resorts website, they say.

Disney has argued that the terms of use include an arbitration clause that applies to “all disputes” including those involving “The Walt Disney Company or its affiliates” and that Walt Disney Parks and Resorts is an affiliate of the Walt Disney Company.

In August, Piccolo’s lawyers responded to Disney’s claims in a filing, arguing that the company’s position “is based on the incredible argument that any person who signs up for a Disney+ account, even free trials that are not extended beyond the trial period, will have forever waived the right to a jury trial enjoyed by them and any future Estate to which they are associated, and will instead have agreed to arbitrate any and all disputes against any and all Disney entities and affiliates, no matter how far removed from use of the Disney+ streaming service, including personal injury and wrongful death claims”.

“This argument borders on the surreal,” Piccolo’s lawyers added in the filing.

His lawyers have also argued that Piccolo agreed to the terms on behalf of himself, and not on behalf of his wife, or her estate, when he clicked ‘“agree and continue” on the Disney+ registration page.

Full story and source...

So, next time you visit The Pirates of the Caribbean and one of those pirates finally manages to get you, rest assured that you waived all rights to sue them, last time you watched ABC, ESPN or Disney+, stepped a foot into one of their stores or even glimpsed at a Mickey plush being tortured by a toddler.

[Leo Enticknap]

What makes this even more bizarre is that she's only suing for $50K. You would have thought that even the most junior PR intern would have been able to figure out that disputing a case over that little and for such a spurious reason would cause an order of magnitude more reputational damage than a settlement with an NDA attached to it.

[Marcel Birgelen]

Yeah, you'd expect some kind of settlement from Disney's side with some big-time NDA, given the amount involved. European law usually doesn't assign damages in the millions for such cases, but even for here, those $50K would be on the low side, if liability could be established.

The amount of potential damages to their brand and reputation due to all the negative press this already has caused, must be worth a thousand-fold of this $50K already.

I can understand that a corporation like Disney wants to make clear that they'll fight back against lawsuits they consider frivolous, just to make a point that there is no such thing as an easy pay-day. But if that was the intention here, I guess Disney should look for new lawyers...

[Steve Guttag]

At some point, I think regulation will need to come about that puts limitations on "binding arbitration." That is...have a stipulation that whomever is seeking arbitration cannot also pick the arbitrator. It is inherently a slanted system when one gets to set the rules and then gets to pick the judges (whom that they will not continue to pick if rulings don't go their way). The other change that I think is really required is that all arbitration should be able to be appealed in the regular court system. I think if either of the above were made into law, you'd see the fascination with arbitration would significantly diminish.

[Harold Hallikainen]

Interesting! I think that the agreement to use arbitration would not be an enforceable contract on the free trials, since a enforceable contract requires consideration. However, he apparently paid for tickets and (probably unknowingly) agreed to arbitration at that time.

[Steve Guttag]

If you look into YouTube...Steve Lehto (Lehto's Law) just did one on this case and would agree with your assessment. I'm sure other lawyers will chime in on this one too (perhaps the Legal Eagle). Regardless, my comments stand that binding arbitration that circumvent one's rights to seek a jury trial should be made illegal. I have no problem with arbitration being a lower-cost alternative but it should not replace the obligation of the government to settle legal disputes.

[Ryan Gallagher]

I'm just waiting for Legal Eagle to pick this story up on Youtube. ;-)

[Steve Guttag]

If you haven't checked out Steve Lehto...I highly recommend it. It is just a lawyer talking in front of his collection of license plates and microphones but Steve has had radio broadcast experience and it shows in his voice. I like his style as much as Legal Eagle, who's episodes are certainly more polished and a presentation.

[Ryan Gallagher]

If you haven't checked out Steve Lehto...I highly recommend it. It is just a lawyer talking in front of his collection of license plates and microphones but Steve has had radio broadcast experience and it shows in his voice. I like his style as much as Legal Eagle, who's episodes are certainly more polished and a presentation.

Will do. PS having a bunch of legal/court analysis youtube subscriptions was not on my 2024 bingo card. But strange times we live in.

[Marcel Birgelen]

You'd think there should be some legal frameworks in-place, so that those One-Click "I Agree"-style of "contracts" can never exceed the scope of the product or service at hand. You can't expect everybody to be a lawyer and if you would've to read through all those terms and services of every little thingy that requires you to "agree to their terms and services", you wouldn't have a life left. And even then, what other options do you have? No e-mail? No Internet? No streaming? No operating system?

So, I'd say that anything with consequences beyond the scope of the product or service should simply not be enforceable via an "auto-accept" kind of single-sided agreement. Furthermore, like Steve indicated I'd say that something like forced arbitration should be illegal, at the very least for any agreement or contract between a business and a consumer.

While not a lawyer, I like Louis Rossmann's take on it:

[Steve Guttag]

Louis Rossmann is certainly an interesting guy. And, if you want to learn about SMT board level repair work...he has a gazillion videos on how he troubleshoots macbooks and repairs them...and will even list the equipment he uses that is not over-the-top expensive (for what it is). In the past couple of years, rather than, essentially, showing the same sort of repair videos over and over, he has taken on the consumer advocate role but in his New York style of you are getting "effed" by everyone sort of videos. He is very big into not just right-to-repair but what it really boils down to...the right-to-own. You should own what you bought and paid for. And with said ownership, you should get to do with it what you want (including repair) and no outside entity should have control over it.

[Mark Gulbrandsen]

The whole thing seems strange to me, because the attorney's fees will probably be at least the 50K if not more...

[Ryan Gallagher]

The whole thing seems strange to me, because the attorney's fees will probably be at least the 50K if not more...

Steve Lehto explained that part well, the language was "50,000 or more", this was to state/ensure which type of court the case lands in. The suit is not actually for exactly 50k. Below that threshold it is some type of small claims court affair I expect.

[Marcel Birgelen]

That seems to be the likely reason for the $50K or more figure:

On January 1, 2023, pursuant to Florida Statutes § 34.01, there were changes as to which court you can file your complaint for money damages. When filing a lawsuit in Florida County Court for money damages there are three separate courts in which you could file depending on the amount in dispute.

Small Claims – Small claims court will continue to handle amounts in dispute which are less than $8,000. The goal of the small claims process is to enable any person or business to resolve their dispute without having to go through a formal and complex court procedures.

County Civil Court – Florida County Courts will now handle amounts in dispute greater than $8,000 and less than $50,000.

Circuit Civil Court – Circuit civil court will now handle amounts in dispute greater than $50,000.00.

Source...

While the Legal Eagle hasn't chimed in yet (and it remains to be seen if he will on this subject), Louis Rossmann has since posted a follow-up video in which he makes the somewhat controversial argument that Disney is actually promoting piracy this way: If the plaintiff wouldn't have done "the right thing" and would've bootlegged Disney's content instead of signing up for the Disney+ trial, he probably would've had a settlement agreement from The Walt Disney Company by now.

While I still do think that you should pay for what you use, and this also applies to content, Disney isn't making a particular good case for themselves here. If becoming a Disney+ member implies waiving all my legal rights against them, I'll start to judge for myself whichever of the two is the "lesser crime": Some self-justified piracy or a big corporation thinking they're above the law, even if it involves the potential wrongful death of a loved one.

I've worked for "the mouse" as contractor in the past and I remember signing documents that stipulated clauses like that I'm not allowed to say anything negative about the House of Mouse... ever. None of those contracts ever included any forced arbitration though, this seems to be a more recent move by them. I don't think that those kinds of clauses can ever be legally binding in the broadest sense, the way they're usually formulated, so I see those clauses in the context of the work I've done for them. Also, being a Disney shareholder, I guess, gives me the absolute right to voice my concerns about how the company is dealing certain situations, both privately and in public.

I think, the law should, by default, side with the interests of the consumer: the little guy, the one who needs protection from those billion and even trillion dollar juggernaut companies, those with the endless cash reserves that can make your life miserable for many years if you ever dare to challenge them. If the law completely abandons the little guy, then we're automatically bound for some dystopian hybrid version of the future, where RoboCob meets BladeRunner, if we're not (halfway) there already...

[Ryan Gallagher]

The way I see it, Disney knows they don't have much of a leg to stand on with these arguments, especially with the ticket purchasing agreement having language that superceeds the streaming one (the right to florida courts existed in the ticket agreement). But with the state of the courts in the US right now, I'm betting Disney saw this as an opportunity to throw a Hail Mary argument, because on the off chance they win it on those grounds, it would be precedent setting for all industry in favor of the corporation over the consumer. It's like a legal fishing expedition, rather than do the right thing by the injured party.

That or they just have a standing rule to litigate everything that isn't arbitrated by one of their arbitrators, and any argument will do.