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

[jcb]

You know how, if you follow a live football or baseball game online now, they show you the percent chance that one team or the other will win and how that percentage changes depending on the status of the game? That's sort-of what we have here.

I'd say that, at present, Disney has a better than 50% percent chance of the first lawsuit being dismissed but that will probably only occur after the February trial. I expect Judge Conway might be reluctant to grant summary judgment at this point (she certainly doesn't believe such a motion is currently pending) because she knows she will be deciding the case in February after hearing proof. In general, if a judge knows he or she will hear and decide the case, they are a little less likely to dismiss the case before trial because the chances of being reversed after a trial are much lower than if the judge dismisses the case before trial. (I am not saying Judge Conway would do this. I don't know her. I'm going on a generalization about how judges think and Judge Conway might not fit that mold.)

Now, like any litigation, while I've read some of the pleadings and arguments, I've not heard all the proof in any one case. I doubt I will spend four days in February in Orlando federal court, I mean, if I'm then going to be in Orlando . . . .)

Also remember, there are multiple DAS cases pending. Only one has been set for trial. There's also a chance that, for a specific disabled plaintiff, Judge Conway or some future judge might hold that a specific plaintiff's disability requires WDW provide that plaintiff "near immediate access" to attractions at WDW in order for that plaintiff to be provided the full and fair enjoyment of the park.

These cases were never brought as class actions. As much as the plaintiffs probably want to force Disney to toss DAS, they can't do so unless they show DAS is discriminatory on its face and the Eleventh Circuit held it wasn't. "At bottom, Disney's issuing a DAS Card to all cognitively disabled guests is not per se impermissible under Title III of the ADA." A.L. by & through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1292 (11th Cir. 2018).

They can still assert individual claims, however, but even if WDW had to modify its policy for one plaintiff after a Judge's ruling based on a specific plaintiff's cognitive needs, that wouldn't necessarily legally obligate WDW to open the door to everyone who claims to have a cognitive impairment that requires near immediate access to attractions. As a practical matter, Disney might decide to adjust its DAS policies to permit "near immediate access" to attractions in some situations, especially those similiar to our hypothetical prevailing plaintiff. But otherwise, courts generally can't (or don't) strike down whole policies such as DAS simply because, in one instance, it didn't work for one plaintiff, especially not when the appeals court has already ruled DAS is not "per se impermissible."

 

[jcb]

Recent lawsuits in Orange County:

Judy Rosenthal is suing Disney (and others) because the elevator at the Hilton on Hotel Plaza Blvd allegedly malfunctioned:

JUDY ROSENTHAL, was at the Hilton Orlando Lake Buena Vista – Disney Springs and went to the downstairs elevators where she anticipated taking one to the floor of her hotel room, where she staying. Upon arriving at the elevator in question, the doors opened and the Plaintiff proceeded to attempt to enter. However, the elevator doors negligently malfunctioned, by failing to properly open, causing them to collide with the Plaintiff, who fell and sustained serious personal injuries as a result.​

She alleges Disney"owned, possessed, operated, or controlled the premises known as Hilton Orlando Lake Buena Vista – Disney Springs." Perhaps I'm missing something.

Teresa Covey is suing Disney because as she "walked across a heavily traversed Main Street [at the MK] after the parade passed, she fell when her foot got stuck between the trolley rail and pavement, causing her to sustain serious injuries." She asserts Disney was negligent in failing to "remove the hazard." I have big feet so I am probably not capable of comprehending the claim.

Charlotte Dious, representing herself, is suing Disney alleging that while she was sitting on outdoor furniture in a theme park (she doesn't say which one), she "was trampled on by other guests of [Disney] who was running among a fast-moving excessive crowd of people. The guest(s) trampled on the Plaintiff when the guest(s) ran over Plaintiff's left foot with a stroller carrying large infant(s), thereby, causing injury and contributory permanent damage to Plaintiff's left foot, leg, knee and hip." She blames Disney for not having wider walkways and for putting the furniture "so close" to the walkways and attractions. She seeks $5000.

Maria Rivera works for "Owens Realty Services" and says she was at the "Roy O Disney Production Center" on July 9, 2018 when she was "walking up the wooden bride walk to clean the portable units when she stepped onto one of the boards of the bride walk and the broad cracked/split and shifted causing her to fall." Disney's answer asserts "statutory employer immunity" as a defense which means it believes Ms. Rivera worked as a contractor employee and Florida's workers' compensation law provides her only remedy. It cites a Florida Statute and decision to this effect:

Section 440.10(1)(b), Florida Statutes (1993), states that “n case a contractor sublets any part or parts of his contract work to a subcontractor ... all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment.”​

Delta Air Lines, Inc. v. Cunningham, 658 So. 2d 556, 557 (Fla. Dist. Ct. App. 1995)

I'm trying to figure out (1) what Ms. Rivera means by "bride walk" (perhaps she meant "board walk" but the complaint refers to "wooden bride walk" several times), and (2) where the ROD Production Center is located. Google isn't being terribly helpful on either puzzle. The address (3800 North World Drive) puts it between the toll plaza (which is 3450 World Drive) and the Contemporary (4600 North World Dr.). My best guess is that it's across North World Drive from the Zurg (villains) parking lot at the TTC. (Google Map image below).

 

[jjb1974]

Teresa Covey is suing Disney because as she "walked across a heavily traversed Main Street [at the MK] after the parade passed, she fell when her foot got stuck between the trolley rail and pavement, causing her to sustain serious injuries." She asserts Disney was negligent in failing to "remove the hazard." I have big feet so I am probably not capable of comprehending the claim.

Does Florida have a jury instruction or a holding that could be best summed up as "every accident is not negligence"? We have one here and while it's rarely used, it's one of my favorite model instructions for things like this (and very much so for the "trampling" case).

 

[jcb]

Florida actually recommends against this type of instruction. Pattern Jury Instruction 401.4 explains.

1. No inference of negligence from mere fact of accident. The committee recommends that no instruction be given to the effect that “negligence may not be inferred from the mere happening of an accident alone.” Belden v. Lynch, 126 So.2d 578, 581 (Fla. 2d DCA 1961). Such an instruction is argumentative and negative.

I am not sure how much weight should be given to a 1961 decision in 2019 but it apparently is still followed.

https://jury.flcourts.org/

 

[jcb]

I'm not really sure where to start. First, i think I'll be ending posts to this thread at the end of the year and starting a new one. Also, to talk about burying the lede, I'm floored by the latest publicity about the bugs in lettuce case. Article after article proclaims that the family filed a lawsuit over bugs in lettuce served at the poly concierge level when the real story was that the trial judge agreed with Disney's argument (post here) and dismissed the complaint. He gave them 20 days to file an amended complaint. I'll attach the courtroom minutes. The normally clueless New York Post just put up an article on the case confirming their reputation by saying "Walt Disney World is pushing to settle." What the Post missed was that after a judge dismisses the lawsuit is about the best time to propose settlement. I often do it (obviously can't go into specifics) because the other side and their lawyer probably want to salvage something from the effort put into the case. It doesn't often work but it isn't a pointless exercise either.

The other litigation news concerns the DAS autism lawsuit. Last week was the deadline for the parties to submit exhibit lists, witness lists, trial briefs and pretrial statements. I'll attach Disney's trial brief, though it isn't much more than we've already discussed. The plaintiffs, however, went overboard. The court issued an order on November 12 2019, holding many of their proposed exhibits were not relevant. In response, apparently, plaintiffs added 150 new exhibits without making any effort to reduce the exhibits already ruled inadmissible. Plaintiffs also tried to add three new witnesses again, after being told in the November 2019 order several witnesses would not be allowed to testify. The new witnesses they proposed included two CM or former CMs. Finally, plaintiffs revised "trial brief" and pretrial statement (whcih states the parties legal contentions) asserted DAS was "inherently discriminatory" and the plaintiff did not have to show that he made a request for a modification. As Judge Conway said," Plaintiff’s position is directly contradicted by the Eleventh Circuit’s opinion" and "conflicts with the requirements of the ADA statute and with the law of this case as expressed by the Eleventh Circuit and this Court, sections of Plaintiff’s arguments regarding his theory that DAS was “inherently” discriminatory, rather than arguments tailored to his specific circumstances, will be stricken."

Attorneys who flaunt court orders - and many do with utterly no remorse - live dangerously. Here, Judge Conway issued a "show cause" order (attached) which means that the plaintiffs' counsel now has 14 days from yesterday to persuade the judge not to sanction him for wasting the court's time and Disney's resources. Show cause orders simply provide clear notice that the judge expects an answer; they are not always harbingers of sanctions (though this one is) but a court's way of clearly stating that it will take action unless the parties provide a good reason it should not.

 

[OKW Lover]

Appreciate the update Jack. I always find it interesting to hear about the various legal perils that Disney faces.

ETA: I read the three attachments. I found Disney's legal arguments pretty convincing. Of course, you would expect that. I'll be looking forward to whatever the court does with the plaintiffs response on December 18th.

 

[jcb]

Appreciate the update Jack. I always find it interesting to hear about the various legal perils that Disney faces.

ETA: I read the three attachments. I found Disney's legal arguments pretty convincing. Of course, you would expect that. I'll be looking forward to whatever the court does with the plaintiffs response on December 18th.

I read the plaintiffs trial brief before I read the judge's order. I kept wondering why he thought his arguments about DAS being "inherently discriminatory" could possibly be consistent with the CA11's decision. As I mentioned in post 81, the CA11 said: "At bottom, Disney's issuing a DAS Card to all cognitively disabled guests is not per se impermissible under Title III of the ADA." A.L. by & through D.L. v. Walt Disney Parks & Resorts US, Inc., 900 F.3d 1270, 1292 (11th Cir. 2018). There's no light between "inherently discriminatory" and "per se impermissible." Legally, they have to mean the same thing.

Plaintiffs' counsel made other arguments, fortunately for them. Disney, of course, argues that they want "near immediate access." Plaintiffs don't come right out and say that they don't want this; instead they dance around the issue, saying DAS does not "assure" that the autistic plaintiff "will be able to experience Disney’s attractions with manageable wait times, or in a tolerable sequence." What does this mean? Here beings the dance, for they say they would be fine with the court requiring Disney to let him use the "FastPass" lines. (Note the omission of "+" which likely means that they haven't experienced the glory of having a FastPass+ line take 30 minutes to get on the attraction - I'm looking at you 7DMT). But they then destroy what might be a quasi-reasonable argument by saying the court could also "simply order Disney to ensure that he will not be required to wait more than 10 to 15 minutes to experience any attraction during his visit." I tend to think the plaintiffs counsel has lost site of the fact that the judge has already said one main issue is what is necessary to permit the plaintiff to "afford [him] an equal experience at and enjoyment of Disney’s parks." (see post 77.) Given this, I was rather floored to read in the plaintiff's trial brief that they criticized DAS because "the DAS was always intended, above all else, to equalize wait times" and what he wants is an accommodation that "reduces the waiting time." I tend to think plaintiffs' counsel has painted himself into the corner on this because, to succeed, he is going to have to prove that waiting to board an attraction is not part of the Disney theme park experience (even if it isn't part of the "enjoyment" of visiting a theme park).

They also make the argument that while Disney gives out re-admit passes that allow the use of the "Fastpass" line, these can't be accommodations because they are "not given to guests as a disability accommodation" but "a guest is given a re-admit pass in an effort to recover the guest’s favor." I don't know how the court will view this but an entity don't have to call every accommodation an accommodation and the entity's motive in making the accommodation is generally not dispositive on whether it provides an accommodation. (I also seem to recall that a court has already ruled that re-admit passes are a form of accommodation.)

 

[Alicenwonderment]

Is there any updates in this case? https://www.hollywoodreporter.com/t...-knock-characters-at-birthday-parties-1134235

On Facebook someone posted pictures of her adult daughter dressed as Disney Princess and stated she did parties dressed up as a Disney princess. Having worked for Disney I have a hard time with businesses using the costumes and claiming they are a Disney princess. Frankly I've seen some dressed up that make me cringe because they look nothing like the character they are representing. Disney has always talked about character integrity. They are very careful when they select people for character roles. The thing that really gets to me is the mom stated the girl had worked at Disney and wasn't picked for a character role. Anyways reading that story got me wondering why Disney doesn't sue more of those businesses? They go after others like the school that showed a movie and later found out they had to pay a 250 fee since they had not paid to show it.

 

[jcb]

Is there any updates in this case? https://www.hollywoodreporter.com/t...-knock-characters-at-birthday-parties-1134235

On Facebook someone posted pictures of her adult daughter dressed as Disney Princess and stated she did parties dressed up as a Disney princess. Having worked for Disney I have a hard time with businesses using the costumes and claiming they are a Disney princess. Frankly I've seen some dressed up that make me cringe because they look nothing like the character they are representing. Disney has always talked about character integrity. They are very careful when they select people for character roles. The thing that really gets to me is the mom stated the girl had worked at Disney and wasn't picked for a character role. Anyways reading that story got me wondering why Disney doesn't sue more of those businesses? They go after others like the school that showed a movie and later found out they had to pay a 250 fee since they had not paid to show it.

I’ll check the docket when I can. Every case is different too, as redbox found out. Trademark lawsuits depend on evidence of confusion which, ironically, is not easy to provide when a mark is so well known as Disney’s characters. I’m surprised by the copyright ruling though. Bad copies are still copies.
Also, this was a Pretrial ruling. The parties may have settled or tried the case and no news organization thought to update the article. It happens all the time.
The Lion King thing was a mistake. I thought I read that Iger apologized for the demand. Disney always walks a careful line between exploitation and promotion. They typically draw the line at folks trying to make money off of Disney marks, eg “baby Yoda” sales online but not at homemade stuff. Disney World/Land could turn away anyone who wears non-Disney sold apparel with its marks. They don’t, likely because the apparel promotes more than exploits. Its kind of the same reason I rarely wear clothes that loudly promote a brand. It has to be a brand that I like not one I just bought to wear.

 

[jcb]

@Alicenwonderment - the court's electronic docket shows that the claims and counterclaims in the lawsuit were dismissed by agreement on December 4, 2018. That ended the litigation. From the looks of the settlement, I suspect the parties agreed to each "walk away" - as in cut their losses (attorney fees). It could also be that the costumed character company agreed to certain conditions on how it used Disney characters. That's pure speculation on my part, though.

 

[Lizgistix]

(plaintiff) is suing Disney because as she "walked across a heavily traversed Main Street [at the MK] after the parade passed, she fell when her foot got stuck between the trolley rail and pavement, causing her to sustain serious injuries." She asserts Disney was negligent in failing to "remove the hazard." I have big feet so I am probably not capable of comprehending the claim.

As a big footed..feeted?...as a person also with big feet, I've walked along Main Street with these trolley rails and wondered if I wasn't watching where I was going (key phrase there) if I might turn my ankle by having my foot go off the rail and into the pavement indentation/crevice. So, mind you, I was aware of this potential hazard and was watching where I was walking.

I'm guessing the toe portion of her footwear caught the rail. Could happen anywhere a trolley runs. Just pay better attention.

 

[Alicenwonderment]

@Alicenwonderment - the court's electronic docket shows that the claims and counterclaims in the lawsuit were dismissed by agreement on December 4, 2018. That ended the litigation. From the looks of the settlement, I suspect the parties agreed to each "walk away" - as in cut their losses (attorney fees). It could also be that the costumed character company agreed to certain conditions on how it used Disney characters. That's pure speculation on my part, though.

Thank you for following up! I just get upset because the characters you see selling themselves as Disney characters are scary looking. I've even seen Make a Wish use these type of companies at farewell parties etc. I would think Disney would not want their characters used like that. At Disney there are rules to keep character integrity and many of these other companies don't have the same quality as Disney does.

 

[SorcererHeidi]

Thank you for following up! I just get upset because the characters you see selling themselves as Disney characters are scary looking. I've even seen Make a Wish use these type of companies at farewell parties etc. I would think Disney would not want their characters used like that. At Disney there are rules to keep character integrity and many of these other companies don't have the same quality as Disney does.

Totally agree about the fake characters looking positively CREEPY!!

 

[jcb]

DAS trial update in bottom of first post.

 

[jcb]

DAS trial update in bottom of first post.

 

[jcb]

Final DAS trial update in bottom of first post.

 

[OffToDWD]

Just wanted to say thank you for these updates. I found these to be very interesting and very easy to understand (which often is not the case with legal stuff... at least to me!). Thank you!

 

[SorcererHeidi]

Just wanted to say thank you for these updates. I found these to be very interesting and very easy to understand (which often is not the case with legal stuff... at least to me!). Thank you!

@OffToDWD - As always when it comes to these "legal briefings", I TOTALLY agree with all you said! @jcb (want to make sure you see these 2 messages)

 

[seashoreCM]

Someone suggested that the plaintiff in the Disability Access Service case should have been able to do all of the things on his preferred list in his preferred order while waiting no more than (small) X minutes. (far down in Post 1 in this thread).

I don't consider that outcome to be fair to be enforced by a court judgment when the average guest with some must-dos on the same list might only be able to do half of those things in any order over the course of the day, which day might also include having to wait a long time outside the park early in the morning, sprint through the park contrary to Disney's safety rules, or skip lunch. Together with a setback or two from an unexpected bathroom break or a child's melting down, particularly late in the evening.

Also, the trial being over, also mentioned in Post 1, why/how are the parties invited to submit briefs (additional documents)?

 

[jcb]

Also, the trial being over, also mentioned in Post 1, why/how are the parties invited to submit briefs (additional documents)?

This was not a jury trial. The judge will decide the merits. It is common in federal court to have the parties submit post-hearing briefs before the judge rules. The briefs typically argue the legal issues and any factual or credibility issues.