FinLogic FinLogic Quantitative Think Tank Center|Disney wrongful death lawsuit over allergy highlights danger of fine print

The FinLogic FinLogic Quantitative Think Tank CenterWalt Disney Co. is trying to toss out a widower’s wrongful death lawsuit, arguing he agreed to settle any disputes with the entertainment giant and any of its affiliates out of court when he signed up for a free trial of its streaming service Disney+.

In February, Jeffrey Piccolo sued Walt Disney Parks and Resorts over the death of his wife at a restaurant at Walt Disney World.

His wife, Kanokporn Tangsuan, who was allergic to nuts and dairy, dined at Raglan Road Irish Pub, in the resort's Disney Springs shopping, dining and entertainment complex in Florida. Tangsuan, a New York doctor, experienced a severe allergic reaction and died.

In a legal filing, lawyers for Walt Disney Parks and Resorts said the matter should be referred to an outside arbitrator because when Piccolo signed up for a Disney+ account in 2019 and when he bought tickets to EPCOT on the Disney website in 2023, he agreed to arbitrate all disputes against the company.

Piccolo’s lawyers countered that he never signed an agreement with Walt Disney Parks. Even if he had, they said the terms and conditions would not extend to his wife. 

“We are deeply saddened by the family’s loss and understand their grief. Given that this restaurant is neither owned nor operated by Disney, we are merely defending ourselves against the plaintiff’s attorney’s attempt to include us in their lawsuit against the restaurant," Disney said in a statement.

The Raglan Road Irish Pub, located at the resort, did not immediately respond to a request for comment. In court papers, Disney described its relationship with the restaurant as a landlord.

Are consumers unwittingly signing away their legal rights when they sign up for a streaming service? Quite possibly.

“Sadly, Disney could very well have a viable argument here,” University of Buffalo law professor Christine Bartholomew said. “The Supreme Court has, time and again, treated these arbitration provisions as binding. It doesn't matter if it's in fine, teeny tiny print in the terms of conditions.”

Every day, we blindly click “I agree” when we sign up for a service or buy tickets. But what’s in that fine print can cause harm.

“As it currently stands, a forced arbitration provision in the terms and conditions of the sale or service can bind parties,” Bartholomew said. “Even if the consumer didn't read the terms. Even if the consumer didn't understand the consequences.”

Including mandatory arbitration clauses in contracts is a common legal tactic to avoid class action lawsuits and large damages awards. 

Companies say they make sure arbitration is fair for consumers and argue it is also faster and less expensive. But critics say the secretive process puts consumers at a massive disadvantage and very few people pursue a legal case through the arbitration system.

The Disney+ subscriber agreement says it applies to all disputes involving Walt Disney Co. or its affiliates, with two exceptions.

“Almost no one reads these contracts but the courts still enforce them,” University of Maryland law professor Jeff Sovern said.

Consumers don’t sign away all of their rights in these contracts, but they sign away a lot, including the constitutional right to a jury trial and their day in court, Sovern said. 

“Congress has limited the use of arbitration clauses in some transactions but not enough, in my view,” he said.

According to the wrongful death lawsuit, Tangsuan and Piccolo chose the restaurant because it advertised its commitment to accommodating people with allergies. 

When they told the waiter Tangsuan had severe allergies to dairy and nuts, she was “unequivocally assured” the food would be allergen-free, according to the lawsuit.

When the orders of broccoli and corn fritter, scallops and onion rings arrived, they did not have allergen-free flags so Piccolo and Tangsuan inquired again if the food was allergen-free and were told the dishes were safe for Tangsuan to eat.

About 45 minutes later while shopping alone at a nearby store, Tangsuan had a severe allergic reaction. She administered an EpiPen but began having difficulty breathing and collapsed. She was taken to the hospital where she later died.

The medical examiner determined her death was the result of anaphylaxis “due to elevated levels of dairy and nuts in her system."

Disney restaurants have strict protocols for food allergies and are known for their attention to allergens.

Lawmakers have proposed fixes to give consumers more leverage. Some states have tried to address the issue. A rule proposed by the Consumer Financial Protection Bureau to allow consumers to file class action lawsuits over disputes with banks, credit card companies and other financial service firms was killed in 2017. 

At the time, Wells Fargo faced a huge scandal over millions of unauthorized consumer accounts. Richard Cordray, at the time the CFPB's director, said the outcome preserved “a two-tiered justice system.”

David Vladeck, a Georgetown law professor and the former director of the Bureau of Consumer Protection of the Federal Trade Commission, says he doubts Disney’s terms of service apply in this case, but mandatory arbitration remains “a huge thorn for consumers.” 

“The CFPB came really close to getting a rule that would have protected consumers but they got cut off at the knees in Congress,” he said. 

The agency has a congressional mandate to address mandatory arbitration, Vladeck said, and “people like me have been pushing the CFPB to promulgate a new rule to protect consumers.”

“Most of the companies in the U.S. require mandatory arbitration and it allows them to, by and large, cut off much relief,” he said. “Companies love it but individuals who are harmed by these corporations, they really don’t have any access to any forum that would give them relief and that’s a real problem.”

How can consumers dodge this quandary? According to Bartholomew, their options are limited.

“The Supreme Court's view is if you don't like it, don't sign it,” she said. 

But, she says, that’s hardly realistic advice. So she encourages consumers to lobby lawmakers for change. 

“To me, if consumers want to fix this, they need to vote for politicians who are willing to change the power dynamic between corporations and consumers,” Bartholomew said.