WDW Litigation Update - March 9, 2020 - Bedtime for the Bed Bugs Lawsuit.

[NeuroCindy]

But can we talk about non-disney lawsuits. I'm a true crime nerd, and the Flowers v Mississippi ruling from the Supreme Court somewhat surprised me. I thought it might go his way, but not in a 7-2 decisions. I was (pleasantly) surprised. No one in my life really cares enough to discuss it with me

 

[jcb]

While I doubt Flowers v. Mississippi would itself amount to much of a political discussion, the problem with discussing non-Disney court decisions on the Disboards is that the discussion can violate the no political discussions rules in the guidelines. https://www.disboards.com/help/guidelines/

Even discussing Disney-related decisions sometimes get too political.

 

[Euby]

Personally, I would prefer to keep it to Disney related cases. It would also be easier to keep things one one thread, as far as notifications are concerned. Just my two cents.

 

[jcb]

There's an unusual development in the lawsuit by the

lady who sued Disney for allegedly refusing to let her bring multiple service dogs onto its property

Yesterday, Disney filed a "suggestion of death," asserting that the lady died on June 18, 2019. When a party to a lawsuit dies while a lawsuit is pending, either side can file what we call a "suggestion of death." You don't have to prove the person is dead but obviously, you want to be pretty sure you are correct before you file the suggestion. (I typically make the obituary an exhibit.) Once the suggestion of death is served on the deceased party's heirs, they have 90 days to substitute a personal representative if they want the lawsuit to continue. The personal representative must be appointed by some other court, typically a state probate court. Federal courts can enlarge this period but court decisions have been rather strict in holding the heirs to the requirements of the rule.

Disney's suggestion of death notice argues, however, that the lady's claims do not survive her death. While many claims seeking money typically "survive" after a person dies, other claims do not. Here, the lady was not seeking damages from Disney but asserted only claims for "injunctive relief" (i.e., claims asking a court to for an order compelling or preventing action). Disney says claims for injunctive relief are "extinguished" (a seemingly insensitive word choice but this is the word used in the applicable federal rule) after a person dies.

Disney is correct that the pending claims only sought injunctive relief. The lady originally sought damages but dismissed this request. Her current action was for an ADA Title III violation and for retaliation. Her ADA Title III claim only authorized injunctive relief. The lady also claimed retaliation but when a person claims retaliation under the ADA for having asserted an ADA Title III type of claim, the ADA retaliation provision only authorizes injunctive relief. (An employee claiming ADA retaliation can seek damages, however, because Title I of the ADA permits employees to recover damages).

In an amended filing, the lady asked the court to (1) "enter an Order requiring Defendant to permit Plaintiff and her service animals to access Disney Springs Park as well as other public accommodations owned and operated by Disney for her own personal use," and (2) "enter an Order requiring enjoining Defendant, and it agents and employees from taking further retaliatory action against Plaintiff during her visits to Disney Parks."

Disney's argument thus seems sound. If, in fact, the lady is no longer among the living, issuing the orders she requested would be pointless because, sadly, she will not be accessing Disney Springs or Disney Parks. (And in case you are wondering, "service animals" would not have standing to sue for access to Disney Springs.)

 

[OKW Lover]

Appreciate the update. Feel sorry for both the lady in question and that the issue will probably not be decided now.

 

[jcb]

I've time for a short update on the litigation. There are a few new cases but most of this is an update to current lawsuits.

Disney filed its answer in the Galaxy's Edge lawsuit (mentioned in this post). It denied liability but at least it admitted that, at DHS, there is a "mural which depicted, among other things, the Millennium Falcon in the area where Star Wars Galaxy’s Edge is planned to open, and there was a partition in front of the mural." So after ducking out of the rain by fortifying myself at Baseline Tap House, I tried to photograph the mural. Just to be clear, this is not necessarily the way the area looked during the incident. While the lawsuit alleged Disney had "its own photographers" taking photos in front of the mural, Disney's answer to this allegation denied it, saying only that "photographs could be taken in front of the partition with the mural as a backdrop." There were no photo pass photographers present when I was there in early July, but then, I was there after a downpour.

While it isn't against Disney World as such, I thought it worth mentioning that Ricky Brigante (google him if you don't know the competing website he used to run) sued the owners of the now defunct Theme Park Connections store claiming they failed to pay him for a number of items of Disney memorabilia they sold on consignment or which he sold them outright. None of the defendants answer Brigante's complaint so the clerk has entered a "default" against them. When this is reduced to a judgment Brigante can start trying to collect the some odd $50k he's seeking in the lawsuit.

The first post mentioned the lawsuit by the Celebration resident who claims brain injury because a "seasonal nesting bird" hit her on the head while she was on the boat dock at the Polynesian Resort. On July 15, 2019, Disney moved to dismiss the entire lawsuit citing the same decisions (more or less) discussed in the first post.

Someone somewhere mentioned ADA lawsuits against websites for not being accessible. I kind of blew them off, saying they were rarely successful. Well, after I exposed my ignorance, the ABA Journal came out with an article generally reporting on these type of lawsuits. The point of the article was that there is a dispute among courts over whether the ADA covers websites when there is no physical store. If there is a store, however, the stores can be sued if their website isn't accessible. The problem is still how to make website accessible so as to avoid lawsuits. There are no federal minimum standards on this because the Department of Justice, several years ago, decided against issuing regulations. To make matters even worse, not long after my post, Disney's stores were sued in federal court in Los Angeles by a "frequent filer" (someone who repeatedly files lawsuits, typically for the same thing) seeking an injunction against "The Walt Disney Company d/b/a shopDisney (“Defendant”) and DOES 1-10, for its failure to design, construct, maintain, and operate its website to be fully and equally accessible to and independently usable by Plaintiff and other blind or visually-impaired people." As I mentioned, there are no federal guidelines on websites so the lawsuit seeks an order compelling Disney to use "Web Content Accessibility Guidelines (WCAG) 2.1" (https://www.w3.org/TR/WCAG21/). As helpful as this is, it is disquieting to see lawsuit seeking to elevate recommended guidelines into the equivalent of legal mandates.

Some will remember the publicity about lawsuits by guests seeking to hold Disney liable because another guest ran into them with a scooter. There are two. One, however, sued Disney to obtain the identity of the scooter operator. When Disney provided that information, the plaintiff sued the scooter operator directly and then dismissed Disney from the lawsuit. In the other scooter lawsuit, Disney denied liability and, further, stated that it would attempt to hold "an unknown 'man operating an electric scooter' that 'collided with' Plaintiff, as described in Plaintiff’s Complaint, and WDPR will identify any additional individuals or entities responsible, in whole or in part, for Plaintiff’s damages as they are revealed through investigation and discovery in this case." Given Disney was able to identify one scooter operator, that threat carries some weight.

Today, the second scooter plaintiff filed what Florida apparently calls a "Proposal For Settlement." If I understand right, the point of this is to get on the record a settlement proposal because if a jury awards more, or less (if the defendant files a Proposal for Settlement) then certain costs are awarded or eliminated as the case may be.

Disney filed a Proposal for Settlement in one of my favorite Magic Kingdom fall lawsuits, by a woman who injured herself after posing for photographs in the Liberty Square stockade. As Disney's motion for summary judgment describes it after posing for the photo, the plaintiff walked off the platform and down two steps and then twisted her ankle:

Plaintiff Maciel was wearing her glasses and was looking down at the steps and the cobblestones as she stepped down. (Id., 49:14-15; 50:21-51:1; 51:23-52:2.) She had no problem seeing where she was going. (Id., 49:16-18.) It was a sunny, bright day. (Id., 38:4-9.) There was nothing wrong with the steps (Id., 51:2-12), and the cobblestones were not wet, loose, broken, or covered by dirt or debris. (Id., 51:13-16; 52:11-14; 63:24-64:6.) The cobblestones were “uneven” (id. 51:11-12), but Plaintiff was generally aware that cobblestones are uneven based on living in New England. (Id., 67:3-6, 14-18.)​

​

My first post failed to mention one of my other favorite Magic Kingdom lawsuits. This lawsuit is by a Mark Rubin, Suffolk County, New York man who went to the Magic Kingdom on July 8, 2015 with his fiancee and other family members. After watching the nightly parade, Rubin "intended to propose to his fiancee" (from this I presume she ultimately said "yes") in front of Cinderella's Castle. It was "intended to be one of the most important of Plaintiff's life." But before he could propose, the lawsuit alleges, a cast member asked him to move to another location. The cast member refused Rubin's request for a postponement telling the Cast Member that he if left the area, the minor children (who were at the concession stand) might not be able to find him. At that point, the lawsuit alleges a "verbal altercation ensued, but at no time did Plaintiff, Rubin, make contact in the nature of a battery upon the Disney Employee." The Cast Member told a different story, claiming Rubin grabbed the back of her shirt and front of her shirt collar. Rubin was then arrested for battery (and, according to Disney has been "trespassed" i.e, banned from Disney property). He's suing for the resulting pain and suffering. The case is set for trial May 4, 2020. Plaintiff recently asked the court to order Disney to mediate the claims. The motion asserts that while there have been some settlement talks, Disney "has been unwilling to date to agree to attend mediation prior to the completion of oral depositions." To us, this is something of a red flag. Its a general rule that an attorney who insists on settlement talks before her client is deposed is worried that the depositions might reveal information that would either reduce the settlement value of the case or make the lawsuit worthless.

I'll sign off before my cat walks across the keyboard and proves to be more eloquent than I could hope to be.

 

[OKW Lover]

Appreciate the updates Jack. I was most interested in the scooter update. I can't help but wonder if Disney is simply the target of a deep-pocket suite here.

I know some folks that regularly rent scooters because of physical ailments that might otherwise prevent them from enjoying the parks as much as they might want to. At least one of them has now acquired their own scooter. At times others should rent a scooter from one of the various rental companies. Had they been involved in a similar incident, would a lawsuit be filed against the rental company? The company that sold the scooter? I doubt it.

 

[hertamaniac]

Anything new on the lawsuit filed about the shattered glass incident on the monorail?

 

[Fred M]

Just posting to give a big thumbs up for this thread!

 

[jcb]

Appreciate the updates Jack. I was most interested in the scooter update. I can't help but wonder if Disney is simply the target of a deep-pocket suite here.

I know some folks that regularly rent scooters because of physical ailments that might otherwise prevent them from enjoying the parks as much as they might want to. At least one of them has now acquired their own scooter. At times others should rent a scooter from one of the various rental companies. Had they been involved in a similar incident, would a lawsuit be filed against the rental company? The company that sold the scooter? I doubt it.

That's a more interesting question that you might realize. Let's first "simplify" the issue by talking about rental cars. Florida applied its "unique dangerous instrumentality doctrine" which “imposes strict, vicarious responsibility upon the owner or other possessor of a motor vehicle who voluntarily entrusts it to another for any subsequent negligent operation which injures a member of the travelling public.” Hertz Corp. v. Jackson, 617 So. 2d 1051, 1052 (Fla. 1993). This meant that "a lessor was subject to strict vicarious liability for the negligence of its lessee and other permissive users." Dupuis v. Vanguard Car Rental USA, Inc., 510 F. Supp. 2d 980, 982 (M.D. Fla. 2007). So, if Hertz rented you a car and you were at fault in an accident, Hertz could be held liable. The Florida legislature imposed caps on this and then, in 2005, Congress passed the Safe. Accountable, Flexible. Efficient Transportation Equity Act: A Legacy for Users (“SAFETEA–LU”). Pub.L. No. 109–59, 119 Stat. 1144 (2005), which effectively prevents Florida from enforcing the "dangerous instrumentality doctrine" against rental car companies. Garcia v. Vanguard Car Rental USA, Inc., 540 F.3d 1242, 1253 (11th Cir. 2008). Rental companies can be liable for their own negligence, such as where they rent a car to someone who lacks a valid driver's license or is obviously intoxicated.

Moving away from cars, Florida has applied the dangerous instrumentality doctrine to a "golf cart when negligently operated on a golf course." Meister v. Fisher, 462 So. 2d 1071, 1073 (Fla. 1984), but another court declined to apply the doctrine to concession go-karts. Festival Fun Parks, LLC v. Gooch, 904 So. 2d 542, 546 (Fla. Dist. Ct. App. 2005). The court reasoned that while golf carts are "extensively regulated by the Florida legislature . . . concession go-karts are not extensively regulated by statute." 904 So. 2d at 546. It also held that injuries by golf carts can be as serious as injuries caused by automobiles but go-kart accidents causing serious injuries are “pretty rare.”

I didn't find any decision applying the doctrine to "scooters." One problem is that Florida statutes and decisions referring to "scooters" generally means motorized scooters not ECVs. Florida regulates "electronic personal assistance mobility devices" but these are Segways. I found no statute attempting to regulate motorized wheelchairs or ECVs. That said, I tend to think they will be treated more like go-karts than golf-carts for purposes of the dangerous instrumentality doctrine but we are talking about Florida so who knows. So, but if an ECV rental company negligently rents to someone who then injures another person, the rental company could be liable for its own negligence. We would have to define negligent rental. If someone announces they intend to drink-around-the-world at Epcot on their EVC, maybe.

I don't see liability for the sale of an ECV. I can't recall any lawsuit where a party was sued because they sold a car to someone who then caused an accident. So it would be pretty hard to hold an ECV seller responsible.

Edited to add that Florida Statute 768.093 states that a "powered shopping cart which is provided to a person gratuitously for use solely on the premises of the owner of such powered shopping cart shall not be considered a dangerous instrumentality in this state."

 

[jcb]

Anything new on the lawsuit filed about the shattered glass incident on the monorail?

I looked at the complaint but it didn't go into more than the news reports. Disney has not filed an answer yet.

 

[jcb]

I"ll link to a California Court of Appeals decision (CHRISTOPHER v. THIE, No. B288151, 2019 WL 3312455, at *6 (Cal. Ct. App. July 24, 2019)) where two parties are fighting over who owns photographs taken by Mell Kilpatrick, who worked for the Orange County Register. According to the decision (which merely repeated allegations) Kilpatrick "had a close relationship with Walt Disney, who invited him to take photos of Disneyland during its construction and allowed him open access to the park after it opened. Kilpatrick, who died in 1962, developed his photographs in his darkroom and stored his negatives and photographs there." Kilpatrick's granddaughter (Thie) asserts she acquired the negatives and other items in 1988 but in 1994 someone stole several boxes of them out of her garage. (This is only one reason why negatives should NEVER be stored in a garage.) Meanwhile, the plaintiff, Anthony Christopher, claims he lawfully acquired negatives and photographs in 1992.

The lawsuit includes the allegation that in 2013, the granddaughter caused an "altercation" with employees of a company that displayed Christopher's photos "at the D23 Disney Convention"

Christopher has now sued the granddaughter because she has effectively prevented him from selling the negatives and photos, which he claims are now worth $300,000 or more. The lawsuit concerns whether the granddaughter's attempts to prove she owns the copyright in the images should be stricken from Christopher's complaint.

Both parties claim they own the copyright in the images. The daughter claims her grandmother (Kilpatrick's widow) transferred all copyrights to her. Christopher claims he acquired the copyright when he bought the images. Under copyright law, physical possession of the negatives or images does not alone give Christopher the right to publish those photos or sell prints from the negatives. He can, however, resell the negatives without violating copyright law but as long as the granddaughter is asserting the negatives were stolen, it will be harder to find anyone who will want to purchase them.

The granddaughter's arguments that the negatives were stolen has some weaknesses. In refusing to dismiss the complaint outright, the court of appeals observed:

​

First, there was evidence that Christopher told Thie sometime 2003 and 2006 that he had lawfully acquired the collection in 1992 from a relative of Kilpatrick. Although Christopher showed her some of the negatives, Thie did not examine the entire collection. Thus, Thie could not have known exactly what photographs and negatives were in the collection. Moreover, there is no evidence that Thie had ever catalogued the photographs and negatives she stated she had acquired from her grandfather’s darkroom; without such a catalog, she would have no basis to determine whether the photographs and images in Christopher’s collection had once been a part of her acquisition.​

Second, according to Thie’s own declaration, she did not start acquiring her grandfather’s photographs, negatives, and other items until 1988, more than 30 years after the photographs at issue were taken. Despite Christopher’s assertion that he had acquired the collection from a man who claimed to be a relative of Kilpatrick, Thie presented no evidence to negate the possibility that some other relative of Kilpatrick acquired the photographs and negatives in the collection sometime before 1988. Indeed, Thie stated in her own declaration that
Christopher told her that he purchased the collection from Thie’s brother, yet Thie provided no evidence to establish that he could not have so acquired it—she did not deny that she had a brother, nor did she provide a declaration from her brother or someone with knowledge to refute Christopher’s assertion. Although the declaration from Love contradicted Christopher’s implied assertion that he had purchased the collection from Love, a trier of fact could conclude that Christopher was mistaken in his identification of Love, but was correct in his assertion​

that he purchased the collection from Thie’s brother or some other relative who had access to Kilpatrick’s negatives and photographs before Thie took the eight boxes from Kilpatrick’s darkroom.​

Third, although Thie stated in her declaration that several boxes of her grandfather’s photographs, negatives, and other possessions were stolen from the garage of her home in 1994, she has never produced any other proof of the alleged theft (such as a police report) despite being asked for such proof multiple times over several years.​

 

[OKW Lover]

Thanks for the latest update @jcb, I think we get the picture.

 

[jcb]

A recent lawsuit baffles me. It's a foreign substance slip and fall case. On June 30, 2018, the plaintiff claims he fell because of a "orange liquid substance" in the "hotel located at 1500 EPCOT RESORTS BOULEVARD, BAY LAKE, FL 32830." That's the address for the Dolphin.

The lawsuit, however, was filed against "WALT DISNEY PARKS AND RESORTS U.S., INC. D/B/A STARWOOD WDW DOLPHIN A/K/A SWAN & DOLPHIN HOTEL RESORT".

The proper defendant in a slip and fall is generally the person responsible for the premises (you can also sue the person who is responsible for putting foreign substance on the premises but even with surveillance cameras, that is still pretty rare).

Suing Disney for a fall at the Dolphin seems pretty uninformed. For a slip and fall caused by a "transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it." Florida Statute 768.0755. It's probably not going to be easy to show Disney had knowledge of the condition and had an obligation to remedy it.

 

[disney11fan]

Any lawyer will tell you to never admit fault. Disney is doing as instructed. Get a better lawyer is my advice.

 

[SorcererHeidi]

Any lawyer will tell you to never admit fault. Disney is doing as instructed. Get a better lawyer is my advice.

Any lawyer? Ya mean like @jcb, the lawyer so graciously posting and explaining this stuff?

 

[jcb]

It was a slow week for Disney's Orange County (state court) litigation. To fill the gap, I thought I'd mention the "gift" suing DIsney can bring the attorney. Lots of folks wonder why lawyers take seemingly outlandish cases.

Most of you will remember the lawsuit against Disney over its hiring (through other companies) of "H1B" workers to supposedly replace US workers. If you aren't familiar, we did a podcast segment on it where I was in the Denver airport.

Anyway, Bloomberg recently rant an article about a change to the H1B program. https://news.bloomberglaw.com/daily...sed-in-latest-trump-targeting-of-visa-program

Among other things, the writer sought out the attorney who filed the unsuccessful lawsuit.

Sara Blackwell of the Blackwell Firm in Sarasota, Fla., represented a group of former Walt Disney World tech workers who sued after they were laid off and forced to train their replacements, who were H-1B workers employed by Cognizant and HCL America Inc.​

The layoffs, which took place in 2015, brought national attention to the H-1B program and landed it on President Donald Trump‘s immigration platform during his campaign. The H-1B also is the only visa singled out for changes in Trump’s 2017 Buy American and Hire American executive order.​

Blackwell later dropped the lawsuit after concluding that the law allows displacement of U.S. workers by H-1B holders. She pledged to turn her efforts instead toward advocating for changes to the visa program.​

So, years after the attorney dismissed the lawsuit because the lawyer concluded "the law allows displacement of U.S. workers by H-1B holders" (which is at best a half-truth), national media are still seeking out the lawyer who sued Disney.

 

[OKW Lover]

So, years after the attorney dismissed the lawsuit because the lawyer concluded "the law allows displacement of U.S. workers by H-1B holders" (which is at best a half-truth), national media are still seeking out the lawyer who sued Disney.

Basically, never let a click-bait story die.

 

[jcb]

Basically, never let a click-bait story die.

We are living in a click-bait world and I am a click-bait girl.

 

[hertamaniac]

So, years after the attorney dismissed the lawsuit because the lawyer concluded "the law allows displacement of U.S. workers by H-1B holders" (which is at best a half-truth), national media are still seeking out the lawyer who sued Disney.

Here is my empirical observations of H-1B many years ago. Our technology company had to list the H-1B positions being offered in our cafeteria. The salaries listed far exceeded our legacy programmers which drew incredible ire.

As our quarterlies were released to the public, our R&D division began the "obligatory" 10% layoffs to reduce overhead. We started to see our percentage of corporate revenue dedicated to the R&D division nosedive. The H-1B resources replaced (or maybe displaced) about 80-90% of our previous workforce.