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klempner | on: US Court of Appeals: TOS may be updated by email, use can imply consent [pdf]
Except it is a stretch to say it is "their theme park restaurant". This story was dramatically oversimplified in the media and Disney's position was nowhere near as unreasonable as everyone understands it to be.

The argument was not "they agreed to a EULA 5 years ago and therefore mandatory arbitration in all disputes with Disney".

This is a privately owned restaurant at a glorified shopping mall within the larger Walt Disney World resort. If you died due to a severe allergic reaction at a normal restaurant in a normal shopping mall in Florida the mall owners would generally not be liable unless there's something else going on.

The theory that Disney is liable here is more than anything based on the *restaurant featuring on their app.* The EULA for *that app* would certainly be relevant to this argument.

Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant. That is more than a bit of a stretch, especially for a free trial from years ago, and I'd be surprised (but IANAL) if such a theory would actually hold up in court. Still, on a spectrum from "person died due to maintenance failure on a Magic Kingdom ride" to "person died from going to a restaurant featured on a Disney+ program", if you're arguing that the Disney+ EULA is relevant, this is a whole lot closer to the latter than the former.

colejohnson66 | parent | next
It's my belief the Disney+ EULA claim was just the lawyers doing the "throw everything at the wall and see what sticks" shtick (no pun intended). They knew it was likely to not hold up, but tried it anyway because, if it did, it helps future claims.
3form | parent | next
>Disney's position was nowhere near as unreasonable as everyone understands it to be.

>Now, the Disney lawyers also tried to argue that the Disney+ EULA would actually (at least plausibly) be relevant.

Well, you know, they also could have not done _that_. With it they deserve all the flak that they've got and more, simply because they resorted to a scummy tactic, whatever the reason.

IAmBroom | parent
Except that the theme park did present the restaurant as being part of the park, which makes it quite reasonable to hold the theme park responsible financially for the entire debacle.

If a chainsaw juggler on a cruise ship cuts my dad in half while he's sleeping on his deck chair, "That entertainer was not a direct employee of Royal Caribbean" will hold exactly zero water in determining liability.

All arguments were complete shite.

klempner | root | parent
There are very substantial differences between your chainsaw juggler scenario and the Disney one. Notably, the cruise ship is access controlled and your dad didn't actively engage with the chainsaw juggler.

To be clear, this isn't part of Magic Kingdom or one of the proper Disney theme parks. This is a shopping area, open to the public without admission.

For a closer scenario: the cruise ship docks at one of its stops for a day. The area around where the ship docks is owned by Royal Caribbean but open to the public. Most of the stores are privately owned and operated, leasing space from Royal Caribbean. One of those stores is a theater that runs a chainsaw juggling show. Royal Caribbean's website/app includes the full schedule of that theater and highlights that show as perfectly-safe-we-assure-you. Your dad attends that show and gets bisected.

The key point here, entirely not captured by your scenario: the theory making Disney plausibly liable is that Disney's own online services presented this restaurant and its menus which made the plaintiff believe that the restaurant was subject to Disney's allergy standards. It is not at all unreasonable to say that EULAs for those online services are relevant to this dispute.