Disney is seeking to dismiss and send to arbitration a wrongful death lawsuit filed by a widow who signed up for a Disney+ account several years ago.
Jeffrey J. Piccolo sued Disney Parks and Resorts in February, months after his wife, Dr. Kanokpong Tangsuan, died after consuming food containing an allergen at a Disney World restaurant.
In his lawsuit, Piccolo said he had dinner with his wife and mother at Raglan Road Irish Pub & Restaurant at a resort in Orlando, Florida, on Oct. 5. They asked repeatedly if they could accommodate Tang Xuan’s allergies, according to the lawsuit. Despite reassurances from staff, Tang Xuan suffered a severe allergic reaction after the meal and died at a local hospital, the lawsuit states.
Disney filed court papers in May arguing that the $50,000 lawsuit should be dismissed and resolved in individual arbitration, based on terms Piccolo agreed to when he signed up for a free trial of the streaming service Disney+, which the filing also said Piccolo agreed to when he purchased tickets on the Walt Disney Parks website.
The company’s lawyers said users must select a checkbox that hyperlinks to the terms of service and another that indicates they agree to the terms of service, which the filing said would prevent users from selecting “agree and continue.”
The filing included a copy of the terms of use, including a section titled “Disney Terms of Use,” which states, “EXCEPT FOR SMALL CLAIMS ACTIONS, DISPUTES BETWEEN YOU AND US ARE SUBJECT TO A CLASS ACTION WAIVER AND MUST BE RESOLVED BY BINDING ARBITRATION ON AN INDIVIDUAL BASIS.”
Lawyers for Disney and Piccolo did not immediately respond to NBC News’ requests for comment Wednesday.
Piccolo’s lawyers filed a response to Disney in early August calling the case’s reasons for dismissal “frivolous.” They said Piccolo signed up for a Disney+ account on his PlayStation but believed he canceled during the free trial period.
“Nothing in the Disney+ membership agreement supports the notion that Mr. Piccolo consented to arbitration of any claims arising from injuries sustained by his wife at a restaurant located on property owned by a Disney theme park or resort that ultimately led to her death,” the lawyers said.
They further stated that “the notion that the terms consumers agreed to when creating their Disney+ free trial account should permanently bar their right to a jury trial in any dispute is outrageously unreasonable and unfair.”
His lawyers asked the court not to force arbitration.
Piccolo blamed the Florida resort and restaurant for negligence in his wife’s death. He said in his lawsuit that he told staff at the Raglan Road restaurant that Tang Xuan, a doctor at NYU Langone Health, had severe allergies. Staff told the family that they would prepare special meals for her allergies, according to the lawsuit.
According to the complaint, the family ordered their meal, but when the food they received did not have the “allergen-free” marking, they asked again about the food, to which the waiter again assured them.
Shortly after finishing her meal, Thanh Xuan began having difficulty breathing and collapsed inside a nearby restaurant. She “suffered a severe, acute allergic reaction to the food served at Raglan,” according to the lawsuit.
Tang Xuan used an EpiPen to suppress an allergic reaction while a passerby called 911. Her husband, who had returned to their hotel room, was unaware of what was happening. When Piccolo called his wife’s cell phone, a passerby answered and said she had been taken to the hospital, according to the lawsuit. When her husband arrived, he was told she had died.
A medical examiner’s autopsy report cited in the lawsuit said Thanh Xuan died of anaphylaxis and had high levels of nuts and dairy in her system. Her death was ruled an accident.
The lawsuit names the restaurant and Disney Parks and Resorts as defendants and seeks $50,000 in damages.
