“We believe this situation warrants a sensitive approach to expedite a resolution for the family who have experienced such a painful loss.”
— Walt Disney Co.
“In attempting to push the claim into a confidential setting on what were very tenuous grounds, it succeeded only in creating the very publicity and attention it likely wanted to avoid.”
— Jamie Cartwright, attorney
The NFL season is quickly approaching and because I’m out of market for my home town team, the Buffalo Bills, and have long since cut the cable cord, I jumped at an offer earlier this week for a significantly reduced trial period rate for one of the streaming services that carries NFL games. When I signed up, I had to create an account, to give them all sorts of contact information, and to agree to a large list of terms and conditions, all presented in legalistic language and tiny little print.
I did the same when we signed up for Netflix years ago, and for the Disney+, Hulu, ESPN+ bundle that we subscribed to during the early days of the pandemic. And every one of those, just like every software license, every liability waiver, and every contract, had the same long list of terms of conditions.
We’ve become so accustomed to signing those documents without reading or even really thinking about them, that most of them now have a button that allows you to just skip right to the end and click “accept.” Being a lawyer, I tend to read them, but even if I come across something odd or objectionable, I really only have two choices – sign it, or walk away from the entire thing. There’s no corporate lawyer standing on the other side waiting to negotiate those terms with me. They’re a take-it-or-leave-it proposition.
The effect and applicability of those terms is a complex legal matter that is dependent on a variety of circumstances surrounding their signing, but a case in the news this week demonstrated both how far a major corporation could attempt to take them and how much of a backlash those companies can face. The case involved a tragic death, a free streaming trial, and the Happiest Place on Earth.
Jeffrey Piccolo and his wife, Dr. Kanokporn Tangsuan, visited Disney World last year for a vacation. While there, they dined at a park restaurant and repeatedly told the restaurant staff that she had severe dairy and nut allergies, receiving assurances that the dietary issues could be accommodated. Despite those assurances, Dr. Tangsuan went into anaphylactic shock from the food she ate, was rushed to the hospital, and died later that day. Doctors confirmed that an allergic reaction to the food she ate caused her death.
Not surprisingly, Mr. Piccolo is suing Disney for damages related to his wife’s care and his loss. In response, lawyers for Disney, a notoriously litigious company, took a bold, and many would say, foolish next step. They searched their own records and discovered that Mr. Piccolo had signed up for a free Disney+ trial five years ago, in 2019. That subscriber agreement, which you can find easily online, is split into eight sections, the seventh of which is titled “Binding Arbitration and Class Action Waiver.”
It provides, in relevant part, “You agree to resolve, by binding individual arbitration, all disputes. “Dispute” includes any claim, dispute, action, or other controversy, whether based on past, present, or future events, whether based in contract, tort, statute, or common law, between you and us concerning the services.” Someone representing Disney in the wrongful death action brought by Mr. Piccolo decided that it would be a good idea to argue that the waiver Mr. Piccolo signed five years ago in relation to a free month of Disney+ should bind him to arbitration on any dispute with Disney, forever.
So Disney’s lawyers filed a motion in the lawsuit arguing that the Disney+ terms meant that the case should be dismissed and the matter referred to binding arbitration. It certainly is the case that the streaming terms included the phrase “or future,” but they also clearly reference disputes relating to “the services,” meaning the streaming of “The Apple Dumpling Gang Rides Again,” not the negligent death of a Disney World patron.
Beyond the fact that it was just a lousy legal argument, the filing had two other major problems. First, there is a strong “slippery slope” argument. If Disney had been allowed to make this claim, then any arbitration clause in any contract could be argued to bind those two parties to arbitration on any dispute, forever. That’s clearly not what parties intend when they sign these agreements about a specific issue or subject. But it was also a public relations disaster for Disney who looked, quite rightly, to be trying to weasel their way out of responsibility for a tragic death by means of a ridiculous legal tactic. Not surprisingly, multiple media outlets jumped on the story, and once it started to spread, Disney immediately backed down.
On Tuesday of this week, a Disney public relations spokesperson said that Disney was withdrawing the argument. Notably, the statement came from Disney’s media relations folks before their lawyers had actually filed the legal paperwork in the case. Instead, Disney will now argue that the restaurant was privately owned and the private owners, not Disney, should be responsible.
In addition to being a good reminder that at least skimming those terms is a good idea, the case serves as proof that when it comes to lawsuits involving major corporations, the public relations impact is sometimes just as important as the strength of the legal arguments.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.
