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Disney tells widower whose doctor wife died from a severe allergic reaction at theme park's restaurant he can not sue because he once signed up to a trial for their streaming service
Disney has claimed a widower whose wife died after suffering a severe allergic reaction at a theme park restaurant cannot sue the company because he had previously signed up for a free one-month trial of its Disney+ streaming service.
Kanokporn Tangsuan, 42, suffered a deadly allergic reaction on October 5 last year after she and her family dined at Raglan Road Irish Pub and Restaurant in the Disney Springs, Walt Disney World's outdoor shopping center. The family claims their waiter assured them the food would be allergen-free.
Her husband Jeffrey Piccolo filed a wrongful death lawsuit in Florida, claiming Walt Disney Parks and Resorts was negligent and failed to properly train their staff about food allergies.
But Disney has sought to dismiss the suit and argued it should instead be sent to arbitration because the terms and agreements of its streaming service contract which includes a 'binding arbitration clause,' court records show.
Piccolo's lawyers branded Disney's argument as 'preposterous' and said it 'borders on the surreal', a court filing obtained by DailyMail.com revealed. His attorneys have also urged the judge to reject the company's motion to dismiss.
Piccolo is seeking in excess of $50,000 from Disney for mental pain and suffering, funeral expenses, medical expenses and loss of income.
Jeffrey Piccolo (left) filed a wrongful death lawsuit against Disney after his wife Kanokporn Tangsuan (right) died from an allergic reaction
Tangsuan and her family had dined at Raglan Road Irish Pub and Restaurant (pictured) in Disney Springs on October 5, shortly before she had a deadly allergic reaction
Disney, in a May 31 court filing, cited that Piccolo created a Disney+ account in November 2019 and bought tickets to Epcot in 2023, which required him to agree to their terms and conditions.
When signing up for a free trial of streaming service, Piccolo agreed to the terms of Disney's 'Subscriber Agreement' which include an arbitration clause in Section 7 titled 'Binding Arbitration and Class Action Waiver', the company argued.
'[The section] applies to "all disputes" including those involving "The Walt Disney Company or its affiliates." Walt Disney Parks and Resorts is an affiliate of The Walt Disney Company,' the company said.
They also said Piccolo agreed to the 'Walt Disney World terms' when he purchased park tickets for him and his wife in September 2023 which include the same arbitration clause.
Disney also noted by agreeing to the terms he represented his deceased wife while doing so.
'Whether Piccolo actually reviewed the Disney Terms is also immaterial,' the company added.
Piccolo's lawyers have rejected the company's 'incredible argument', claiming that Disney's position means anyone who signs up for a free trial of the streaming service 'will have forever waived the right to a jury trial enjoyed by them and any future Estate to which they are associated.'
'As can be seen from the prior sentence, this argument borders on the surreal,' the plaintiffs argued in an August 2 court filing.
'Walt Disney Parks and Resorts nonetheless improperly attempts to negate this distinction by making the preposterous argument,' the complaint said.
Disney said the matter should go to arbitration because that is what Piccolo agreed to when he created a Disney+ account in November 2019. Pictured is an excerpt of the Terms & Conditions of the Disney+ subscriber agreement
The lawsuit further alleged that Disney has made an error about the contract Piccolo signed.
The complaint, in a footnote, argues the company 'incorrectly states that the Disney+ Subscriber Agreement is between Disney DTC and/or its affiliates, by erroneously quoting language from the Disney Terms of Use, rather than the Disney+ Subscriber Agreement'.
Piccolo's lawyers also argued that Disney gave up their right to seek arbitration when it filed its first answer to the lawsuit without bringing the matter up.
'Even if the Court were to consider the substantive part of WDPR's untimely Motion, it is based on the incredible argument that any person who signs up for a Disney+ account, even free trials that are not extended beyond the trial period, will have forever waived the right to a jury trial enjoyed by them and any future Estate to which they are associated,' Piccolo's attorney said.
A Disney spokesperson in a statement to DailyMail.com said: '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.'
Defense attorney Misty Marris, appearing on NewsNation's CUOMO program Wednesday, suggested it is unlikely a judge will find it 'reasonable' that a consumer is signing away their right to be heard in a court of law 'because you signed up for an app on your television'.
Acknowledging that Disney+ users do sign a contract, Marris added: 'But you don't just look at that one isolated component of a contract from a court's perspective and make a determination that any and all cases, no matter what they are, have to go into arbitration.'
She argued that the full agreement of the contract will have to be considered.
'I saw user registration, subscriptions, cancellation of the app, payment, copyright, everything you would think would relate to the use of the application, the use of the platform,' she said of her review of the agreement.
'Not when you step onto that property and if you experience a personal injury when you're actually in the park.'
She added that when 'something is silent' in a contract it 'comes down to the intent of the parties' and 'what a reasonable person would think'.
Disney also argued Piccolo agreed to their terms and conditions of arbitration when he bought tickets to Epcot
A defense attorney has suggested it is unlikely a judge will find it 'reasonable' that a consumer is signing away their right to be heard in a court of law 'because you signed up for an app on your television'. Pictured: Disney+ application
Piccolo said his wife was highly allergic to dairy and nuts and the couple chose to eat at the pub because they believed Disney would have proper safeguards in place.
The couple repeatedly asked their server about allergen-free food, and claimed the waiter even went to confirm with the chef.
'The waiter unequivocally assured them that the food would be allergen free,' the lawsuit read.
Tangsuan, a medical doctor at NYU Langone in New York City, ordered the following menu items at the restaurant: 'Sure I'm Frittered,' 'Scallop Forest,' 'The Shepherd Went Vegan,' and 'Onion Rings.'
The bottom of the menu available online notes, 'Cross-contamination may occur and thus we CAN NOT GUARANTEE that any dish we prepare will be completely free of gluten/allergens.'
She began having severe difficulty breathing and collapsed to the floor, 911 was called and the caller told the dispatcher Tangsuan had self-administered an epi-pen.
Piccolo and his mother Jackie had tried calling Tangsuan to meet back up with her, but a person answered her phone and told them she had been taken to the hospital.
Tangsuan was highly allergic to dairy and nuts and the couple chose to eat at the pub because they believed Disney would have proper safeguards in place
Piccolo said they repeatedly asked their server about allergen free food, and they said the waiter even went to confirm with the chef
Tangsuan was a medical doctor at NYU Langone in New York and her husband is seeking in excess of $50,000 from Disney
She died at the hospital and the medical examiner investigation determined the cause of death was a result of anaphylaxis due to elevated levels of dairy and nut in her system.
The lawsuit notes that although Disney does not own the pub, 'Disney had control over the menu of food offered, the hiring and/or training of the wait staff, and the policies and procedures as it pertains to food allergies at Disney Springs restaurants, such as Raglan Road.'
They argue Disney failed to properly train its employees on food allergies, and the employees failed to properly warn Tangsuam about allergens in her food.
The filing said Disney and the pub, 'owed a duty of care to its invitees/guests to ensure that food that was designated as allergen free and/or food that was requested to be prepared allergen free, was in fact free from allergens that would cause death or serious physical harm to guests with food allergies.'