Originally published at: Disney uses streaming signup to block fatal allergy lawsuit - Boing Boing
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I wonder if the lawyer who came up with this defense for the park ran it by the upper eschelons of the company management first. Sounds like the kind of thing that could cost them a lot more in PR than a financial settlement for the allergy death would.
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I question how enforceable this is. I mean sure you quoted a lawyer saying it’s enforceable. I still want to believe any reasonable judge is going to laugh this argument out.
Are Hold Harmless Agreements Enforceable?.
I mean I don’t see how agreeing not to sue Disney b/c of something with a streaming service could possibly hold over to a dining experience. Are these even the same legal entities? I mean every corporation loves to break themselves into separate entities for tax/liability avoidance.
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Who the hell is this so-called legal expert? First of all, disclaimers and agreements to not sue like this never excuse negligence. I don’t care what he signed, if Disney was negligent, they are liable for damages. Second, that Disney+ agreement would clearly only apply to issues involving the Disney+ service, not everything you could potentially sue Disney over. There’s not a court in the country that would interpret that like that. Also, the agreement he signed was when he signed up for a free trial of Disney+. That agreement could only have lasted as long as the free trial did. At least it sounds like the husband has a good attorney:
“The notion that terms agreed to by a consumer when creating a Disney+ free trial account would forever bar that consumer’s right to a jury trial in any dispute with any Disney affiliate or subsidiary, is so outrageously unreasonable and unfair as to shock the judicial conscience, and this court should not enforce such an agreement,” wrote Brian Denney, Piccolo’s West Palm Beach attorney in an Aug. 2 court filing in Orange County, Florida.
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This legal strategy on Disney’s part is idiotic, but they aren’t actually claiming that they aren’t liable for damages. Their legal team is trying to say that the case should go to binding arbitration rather than a jury trial.
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Next up … when your Cybertruck catches fire or an exploding Falcon Heavy rains bits of rocket on your head, you can’t sue Tesla or SpaceX because you used Twitter.
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I know what they’re saying. It’s bullshit. There is no way any reasonable person would assume that an arbitration agreement signed when signing up for a free trial to a streaming service would apply to a negligence claim at a restaurant. It’s preposterous.
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That sounds a tortious intepretation of the Disney+ contract. I’m pretty sure this would not fly in Europe as there would be an expectation the Disney+ contract applies only to Disney+.
It would have the same legal bind that me sending an email that says “by opening this email you agree to void any previous contract both parties had in the past. And to pay me 1000$. And a pony.”
maybe this would work in US.
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Depends on the judge these days, it seems.
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Joan Stearns Johnsen is the Director for the Institute for Dispute Resolution at the University of Florida. She’s a member of the American Arbitration Association and a Fellow of the Chartered Institute of Arbitrators (among others), with a 30 year history in “mediating and arbitrating (business) matters”.
In other words, she’s an attorney who has a vested interest in allowing corporations to strip the protections of the legal system from ordinary people in favor of private arbitration groups who certainly don’t have any bias towards repeat customers.
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Arbitration should be banned.
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Could it be John Barron?
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I was thinking Barry from Arrested Development.
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I think arbitration has its place. Just not in torts involving individual plaintiffs and corporate defendants, because the power imbalance means the corporation is almost always going to get the better of it. In disputes between two different corporations? Knock yourselves out with arbitration, I don’t care.
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Shenanigans like these wouldn’t fly here in Germany (and probably the EU overall) because standardised terms and conditions are not allowed to contain “surprising” provisions.
If stipulating that agreeing to the T&Cs for the Disney+ trial subscription means you automatically agree to all T&Cs for every single Disney service including hospitality at Disney parks, or you agree that you will never sue Disney for anything ever, is not surprising then I don’t know what is.
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Not that we’ll ever hear about. I expect Disney will publicly feed that lawyer to the hippos on the Jungle Cruise tomorrow, if they haven’t already done so.
Disney is probably like most other very large corporations that see a dozen lawsuits per day coming from park accidents, slip and falls, and similar issues. They’ll have a small in-house counsel team that contracts out to independent lawyers who bring the cases to court on their behalf. The Disney lawyers are probably more like project managers who oversee the cases, but don’t personally run them.
Some independent lawyer probably thought “hey, I remember an arbitration clause when I signed up for Disney+, let’s see what that says” and decided to push it forward. Now that the bad press has hit the fan, their only play is to shitcan the lawyer and settle the case quickly, before this gets worse.
I expect it’ll turn out the same as that airline lawsuit from earlier this year, where an independent lawyer blamed a 9 year old girl for being filmed in the bathroom by a hidden camera illegally placed there by an employee. That lawyer was tossed under the bus in just a few days (not soon enough to fix public opinion, but still pretty fast.)
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I don’t think felonies and misdemeanors can go to binding arbitration.
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I’d say this definitely falls under “Just because you have an army of lawyers doesn’t mean you should apply said army to every. single. problem.” Maybe, just maybe, try to quietly dispose of the matter, just like you disposed of your customer, in the interest of not seeming like a cartoon villain.
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