In October 2023, Jeffrey Piccolo and his wife visited a Disney theme park in Florida, and ate in a restaurant there.
She had food allergies, they informed their server of this, and he assured them her food was allergen-free. It wasn’t and the allergic reaction killed her (see story here).
Pretty clear case of negligence there. And the victim was a doctor, so you’re looking at pretty serious damages in terms of income loss, on top of the other damages that make up a negligence award.
But Disney claims he’s not entitled to a jury trial, because in 2019 he’d signed up for a one-month free trial of Disney+ streaming, and the contract contained a clause “which requires trial users to arbitrate all disputes with the company.”
Disney also claims his lawsuit is barred because he bought his tickets through a Disney website (see story here). While it’s not clear the ticket website also has such a clause, that’s implied.
Corporate defendants greatly prefer arbitration to jury trials, because arbitrators typically award far less than juries. So it’s not unusual for contracts to contain arbitration clauses. This is something consumers should avoid whenever possible; and if you’re in an accident where the other party is at fault, you and your lawyer should reject an arbitration offer in lieu of a jury trial.
Disney’s gambit sounds outrageous, and probably is, but defending against lawsuits aggressively is par for the course. With millions in liability on the line, defense counsel will try anything that might work.
I can’t say whether it’ll work here, because litigation is unpredictable (that’s why lawyers usually prefer to settle). I’m thinking it shouldn’t work, because the contract involving the Disney+ subscription expired with the subscription. Contractual agreements don’t have eternal life.
In addition, a fair interpretation of the subscription contract is that the arbitration clause applies only to disputes arising from the subscription, so a court likely would rule it doesn’t cover personal injury or wrongful death at a theme park, as that’s beyond the scope of the contract.
Keep in mind here, that all contracts are based on mutual agreement of the parties; and where a trial subscriber hasn’t agreed to waive liability for personal injury at a theme park, no contract to that effect exists.
Now let’s assume there’s an arbitration clause on the company website where Piccolo purchased his tickets, or on the ticket itself, which he was aware of when purchasing the tickets. A contract is a contract, right? Not necessarily.
Given the disparate bargaining power between giant corporations and individual consumers, courts have sometimes refused to enforce contract terms that judges deemed unconscionable or contrary to public policy. In this respect, arbitration clauses are similar to liability waivers; sometimes they’re enforceable, sometimes they’re not, it depends on the individual facts and circumstances.
I’m thinking a court probably won’t allow a theme park operator to require its patrons to waive liability for negligent food service resulting in injury, illness, or death. It’s against public policy to do so. The result might be different if the liability waiver is for a roller coaster ride, although gross negligence (as opposed to ordinary negligence) might still overcome the waiver.
Where does a court get its power to disregard a contractual agreement? To understand this, you need to know there are two kinds of American courts: Courts of law, and courts of equity. This dichotomy springs from American law’s roots in English law. It’s not visible, because you find U.S. courts of law and courts of equity in the same courtrooms, presided over by the same judges. Law professors characterize the difference as judges “wearing different hats.”
Thus, when a judge is asked, or takes it upon himself, to resort to equity principles to set aside a contract, he takes off his “law” hat and puts on his “equity” hat. This is the kind of stuff they teach law students, and lawyers have to know. Contracts are enforced as a matter of law; they’re set aside by a court exercising its equity jurisdiction, based on equitable principles.
So, lurking in the background of Mr. Piccolo’s wrongful death lawsuit against Disney is whether there’s an arbitration agreement enforceable at law, and if so, whether the court shouldn’t enforce it as a matter of equity. If you want to be a lawyer, you’ll have to learn stuff like this.
Meanwhile, before you sign up for Disney+, a gym membership, or anything else, read the contract. I know a lot of salesmen get impatient with that. The line I use in response goes like this (I’ll be wearing my veteran cap): “I just want to make sure there’s nothing in here about re-enlisting in the Army.” That usually shuts them up.
Finally, nothing in this posting is intended to be, or should be interpreted as, legal advice. If you have a legal issue of any sort, you should consult a lawyer.