Disney is trying to have a widower's wrongful death lawsuit dismissed and sent to arbitration because the man had signed up for a Disney+ account several years ago.
Jeffrey J. Piccolo sued Disney Parks and Resorts in February, months after his wife, Dr. Kanokp*rn Tangsuan, died after she consumed food containing allergensat a restaurant in Disney World.
Piccolo said in his complaint that he, his wife and his mother went to dinner at Raglan Road Irish Pub and Restaurant at the resort in Orlando, Florida, on Oct. 5. They asked several times whether Tangsuan's allergies could be accommodated, according to the complaint. Despite the server’s having assured them, Tangsuan had a severe allergic reaction and died at a local hospital, the complaint said.
Disney filed court documents in May saying the $50,000 lawsuit should be dismissed and resolved by individual arbitration because of terms Piccolo agreed to when he signed up for a free trial of the streaming service Disney+. The filing also says he accepted the same terms when he used the Walt Disney Parks website to buy tickets.
Lawyers for the company said that users have to select checkboxes that hyperlink to the terms of use, as well as another that says they agreed to the terms. Users cannot select "Agree & Continue" if the boxes are not checked, the filing says.
The filing included a copy of its terms and conditions. A section titled "Disney Terms of Use" says that "any dispute between you and us, except for small claims, is subject to a class action waiver and must be resolved by individual binding arbitration."
A spokesperson for Disney told NBC News: “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.”
The company said that its “position in no way affects any wrongful death or other claims the plaintiff may have against the restaurant.” Disney added that arbitration is commonly recognized as quicker and less costly than litigation.
An attorney for Piccolo did not immediately respond to a request for comment Wednesday.
Piccolo's lawyers filed a response early this month, slamming Disney's reasoning for seeking a dismissal as "preposterous." They said he signed up for the Disney+ account on his PlayStation but believe he canceled it during the free trial.
"There is simply no reading of the Disney+ Subscriber Agreement which would support the notion that Mr. Piccolo agreed to arbitrate claims arising from injuries sustained by his wife at a restaurant located on premises owned by a Disney theme park or resort which ultimately led to her death," the attorneys said.
They went on to say that 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 ... is so outrageously unreasonable and unfair."
His lawyers asked the court not to enforce arbitration.
Piccolo accused the Florida resort and a restaurant of negligence in his wife's death. He said in his complaint that they told the server at Raglan Road that Tangsuan, who was a physician with NYU Langone Health, had severe allergies. The server told the family that the food would be made allergy-free, according to the complaint.
The family ordered their meals and asked again about the food when the dishes came out without "allergen free flags," the complaint says. They were once again assured by the server, it says.
Not long after having eaten, Tangsuan began having trouble breathing, went into a nearby restaurant and collapsed. The complaint says she was having a "severe acute allergic reaction to the food served at Raglan."
Tangsuan used her EpiPen to help stop her allergic reaction while a bystander called 911, the complaint says. Her husband, who had gone back to their hotel room, was unaware of what was happening, it says. When Piccolo called his wife's cellphone, a bystander answered and told him she had been taken to the hospital, according to the complaint. When he arrived, he was told she had died, it says.
A medical examiner’s autopsy report cited in the complaint said Tangsuan died from anaphylaxis and had elevated levels of nut and dairy in her system. Her death was ruled an accident.
The suit, which names the restaurant and Disney Parks and Resorts as defendants, seeks $50,000 in damages.
