The tragic case of a death at a Disney Springs restaurant underscores the critical importance of thoroughly understanding and scrutinizing the Terms of Use agreements we all often accept without a second thought.
As has been widely reported in the media, in October 2023, a diner at a restaurant in Disney Springs in Orlando, Florida died as a result of consuming an allergen. The deceased's widower filed a wrongful death lawsuit against Disney after the restaurant billed itself as serving "allergen free foods" and the server "guaranteed" that the diner's meal was allergen free.
In response, Disney asked a Florida Court to dismiss the suit. The company argued, in part, that the plaintiff had agreed to settle any lawsuits against Disney out of Court through the arbitration process when they signed up for a one-month trial of Disney+ streaming service in 2019 and acknowledged that they had reviewed the fine print. In addition, Disney noted that the plaintiff agreed to a similar arbitration provision when they created an account on Disney's website and app before their family's October visit.
Disney's approach drew strong public reaction. Disney has since dropped its bid to have the lawsuit tossed on that basis and will waive arbitration. Nonetheless, this case highlights the importance for consumers and providers alike to think critically about what they include and are agreeing to in the Terms of Use (these agreements are sometimes also called Terms of Service or the end-user license agreement). Too often, people glaze over these agreements and blindly accept the terms without giving the details much thought.
While this unfortunate event may be seen by many as an extreme case of using the terms of a subscription and software product to defend against a claim, it stresses the importance for everyone – not just consumers but also providers – to know and understand what it is they are agreeing to.
Key takeaways
Terms of Use can be used as both a weapon and a shield by all parties that are subject to the terms. Taking the time to carefully draft and/or review these terms can pay dividends down the road should the terms ever need to be enforced. Further information about Terms of Use can be found in our blog here.
If you are drafting Terms of Use, Terms of Service or an end-user license agreement for a software product, application, website, software-based service or other technology, our technology, intellectual property & privacy team at MLT Aikins can guide you through the essentials. In addition, if you are reviewing existing terms to identify potential challenges and risks, our team has experience acting for both consumers and providers in all matters of technology law.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
