WDW Litigation Update Septeober 5, 2019 - Concierge Bugs

jek22

Earning My Ears
Joined
Jun 6, 2019
as an attortney, this is very interesting. However, in New York this lawsuit would be dismissed after a motion to dismiss
  • a man alleging a "puddle of water" caused him to fall on July 29, 2017, while walking down the Monorail exit at the Magic Kingdom. This complaint includes photos showing it had obviously rained (i.e., more than a "puddle") and the guy's knee looks pretty banged up. The lawsuit alleges Disney shouldn't have let water accumulate and that the walkway was unreasonably dangerous.
 

yankeesfan123

Earning My Ears
Joined
Jan 3, 2013
Hmm, a motion to dismiss certainly wouldn’t work here in Connecticut. There are no jurisdictional issues based on alleged facts..

A motion for summary judgment after a year of discovery might work, but even that would likely fail in Connecticut. Most judges would find its an issue of fact for the jury to decide whether or not Disney should have let the water accumulate.

Both plaintiff and Disney would likely need to retain their own liability expert, which would both have differing opinions (a lot of experts make a living based on supporting whoever is paying them in a lawsuit), and the costs keep getting higher as trial approaches. Depending on the claimed injuries and plaintiff’s past medical history, most insurance companies would settle the case just short of trial due to the costs of trial.
 
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Fred M

DIS Dad #860
Joined
Jul 1, 2019
Depending on the claimed injuries and plaintiff’s past medical history, most insurance companies would settle the case just short of trial due to the costs of trial.
Also depending on who falls. Usain Bolt's slip and fall case is definitely going to settle a lot faster than my slip and fall case ...
 
  • jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    The latest batch of Orange County filings.

    On August 13, Stephen Addezio, a guest at Blizzard Beach, filed a lawsuit claiming that he "was given permission by the lifeguard on duty and the green light from the ride authorizing Plaintiff to go down the Snow Stormers water slide. Unbeknownst to Plaintiff, the rider in front of Plaintiff had become stuck on the slide prior to him. Plaintiff made impact with the rider causing Plaintiff to sustain injuries as set forth herein."

    The Space Mountain trip lawsuit generated some publicity. Here is the material allegation from the complaint:
    On or about September 27, 2017 at approximately 3:00 p.m., Plaintiff, SAMANTHA HOWARD, together with her husband, two daughters, grandson and daughter’s boyfriend visited Defendant’s premises located at the above address as a business invitee. Plaintiff, family and friends decided to ride Space Mountain. When it was Plaintiff’s turn to get into the car she attempted to climb down into the car, but due to poor lighting she wasn’t aware that the safety restraint lap bar was still engaged in the down position and her foot got caught in the lap bar. Plaintiff lost her balance and fell causing her to sustain catastrophic injuries.

    The falling scooter lawsuit made a lot of press and had generated a good bit of confusion/comment on the disABILITIES! forum: https://www.disboards.com/threads/woman-sues-after-scooter-falls-on-her-during-walt-disney-world-bus-ride.3763529/page-2#post-60947279 with some questioning how the accident could have happened. Unfortunately, the complaint is quite vague on this point. The two allegations which describe what happened state:
    • At the aforementioned time and place, the bus also contained a passenger seated on a motorized scooter rented or obtained from the Defendant and the motorized scooter was not secured at the location to the safety device on the bus wherein such scooters are to be secured.
    • Negligently entrusting a dangerous instrumentality, to-wit: a transport bus, to a driver who allowed passengers, in particular EMILY A. ROSE, to sit in the vicinity of an unsecured motorized scooter, when it was foreseeable that the scooter would tip over when the bus made a turn;
    This is a minor thing but a guest sued Disney Parks for a fall while at Old Key West. She later amended the complaint - changing Disney Parks to Disney Vacation Club Management LLC. I guess that makes sense. I just never thought that a separate entity owned the DVC properties.

    And to update previously filed lawsuits.

    Last week, Disney filed a motion to dismiss a slip and fall lawsuit filed by Barbara Keough who claimed she fell while walking down the walkway to Kali River Rapids. Disney's motion argues (from the summary)

    This case arises from an alleged trip and fall on or about September 16, 2018 at Disney’s Animal Kingdom. In paragraph 5 of Plaintiff’s Complaint, Plaintiff alleges that she “fell at the Kali River Rapids park attraction as a result of a hazardous condition while walking down the walkway…” Aside from paragraph 5, the Complaint is completely devoid of any other facts regarding the alleged incident. Plaintiff’s complaint should be dismissed as Plaintiff has failed to plead any facts in support of her negligence claim. The Complaint consists of nothing more than conclusory factual allegations and legal conclusions. Moreover, Plaintiff fails to allege a dangerous condition for which Defendant could be liable.​

    Disney also filed discovery requests at the same time. That may seem redundant but getting a court to rule on a motion to dismiss takes months (if you are lucky) so Disney's counsel is probably being more cautious than pessimistic.

    There's been no response to Disney's motion to dismiss the Poly Dock Bird(s) Attack lawsuit. It's been more than 30 days since Disney filed the motion. Perhaps that's unremarkable for Florida courts. One court I practice in requires responses to motions be filed only a matter of days before the hearing on the motion.

    A prior post mentioned that Disney has moved for summary judgment on Eva Maceil's lawsuit seeking damages after she stepped down from the public stockage in Liberty Square. While there earlier this month, I hurriedly snapped a photo.

    426576

    * Note - I'm adding names to the lawsuit descriptions for two reasons. The name is a matter of public record and, more importantly, it helps me keep track of the status of the lawsuit.

    Last week, there were two other lawsuits filed in Orange County. I don't have access to those complaints yet.

    No substantive movement in the bed bugs lawsuit. Court ordered mediation is to happen in October. There's been no response to the suggestion of death in the dog lady lawsuit. There's still a month or so before one is due.
     
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    jjb1974

    Earning My Ears
    Joined
    Apr 25, 2018
    The Space Mountain trip lawsuit generated some publicity. Here is the material allegation from the complaint:
    On or about September 27, 2017 at approximately 3:00 p.m., Plaintiff, SAMANTHA HOWARD, together with her husband, two daughters, grandson and daughter’s boyfriend visited Defendant’s premises located at the above address as a business invitee. Plaintiff, family and friends decided to ride Space Mountain. When it was Plaintiff’s turn to get into the car she attempted to climb down into the car, but due to poor lighting she wasn’t aware that the safety restraint lap bar was still engaged in the down position and her foot got caught in the lap bar. Plaintiff lost her balance and fell causing her to sustain catastrophic injuries.
    I work the plaintiff side of the Bar primarily and this kind of exaggeration with words like "catastrophic" or "devastating" or what have you does nothing more than bring an eye roll out from all who are forced to read it. I instantly doubt the underlying claims as a result.
     

    jek22

    Earning My Ears
    Joined
    Jun 6, 2019
    Hmm, a motion to dismiss certainly wouldn’t work here in Connecticut. There are no jurisdictional issues based on alleged facts..

    A motion for summary judgment after a year of discovery might work, but even that would likely fail in Connecticut. Most judges would find its an issue of fact for the jury to decide whether or not Disney should have let the water accumulate.

    Both plaintiff and Disney would likely need to retain their own liability expert, which would both have differing opinions (a lot of experts make a living based on supporting whoever is paying them in a lawsuit), and the costs keep getting higher as trial approaches. Depending on the claimed injuries and plaintiff’s past medical history, most insurance companies would settle the case just short of trial due to the costs of trial.
    In new york, notice is still needed. just because it rains that does not mean a building owner, or Disney, has actual or constructive notice of a slipping condition.
    How long after it rained did P fall?
    what was the temperature
    how long did it rain for
    did you know it rained out.
    were you looking wher you were going.

    Those are the questions that I would frame my motion to dismiss on and would likely win.
     

    jjb1974

    Earning My Ears
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    Apr 25, 2018
    In new york, notice is still needed. just because it rains that does not mean a building owner, or Disney, has actual or constructive notice of a slipping condition.
    Those are the questions that I would frame my motion to dismiss on and would likely win.
    I'm wondering if there's a difference here just in how the states view the burden of a complaint. My state (Arkansas) is supposedly fact pleading, but if I complained that there was a hazardous condition present and upon information and belief it existed for long enough for the defendant to address same and they failed to do so, we're going to get past MTD. That's really a "notice pleading" kind of hurdle, and every once in a while our supremes feel like they need to keep everyone on their toes and will uphold an MTD for this kind of stuff, but it's pretty rare.

    However, our slip and fall laws are very much like yours, and thus you're going to go through discovery to get those very answers you're listing.
     
  • jek22

    Earning My Ears
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    Jun 6, 2019
    I'm wondering if there's a difference here just in how the states view the burden of a complaint. My state (Arkansas) is supposedly fact pleading, but if I complained that there was a hazardous condition present and upon information and belief it existed for long enough for the defendant to address same and they failed to do so, we're going to get past MTD. That's really a "notice pleading" kind of hurdle, and every once in a while our supremes feel like they need to keep everyone on their toes and will uphold an MTD for this kind of stuff, but it's pretty rare.

    However, our slip and fall laws are very much like yours, and thus you're going to go through discovery to get those very answers you're listing.
    My MTD would attach an affidavit from my client about how there was no notice, playing up the lack of time.
    I think in most cases I would get out. Whenever i file a motion like that, Plaitniff always calls to settle.
     

    jjb1974

    Earning My Ears
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    Apr 25, 2018
    My MTD would attach an affidavit from my client about how there was no notice, playing up the lack of time.
    I think in most cases I would get out. Whenever i file a motion like that, Plaitniff always calls to settle.
    Yeah we can't attach to an MTD here, the complaint is taken on its face. You could file an answer with an affidavit and then move for judgment on the pleadings though.
     

    jek22

    Earning My Ears
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    Jun 6, 2019
    Yeah we can't attach to an MTD here, the complaint is taken on its face. You could file an answer with an affidavit and then move for judgment on the pleadings though.
    Interesting, we can do that in New York. You can get away with damn near anything here lol
     

    Fred M

    DIS Dad #860
    Joined
    Jul 1, 2019
    I work the plaintiff side of the Bar primarily and this kind of exaggeration with words like "catastrophic" or "devastating" or what have you does nothing more than bring an eye roll out from all who are forced to read it. I instantly doubt the underlying claims as a result.
    If the lap bar severed the plaintiff's foot, then I think they should be able to use catastrophic or devastating. But otherwise, I agree--instant eye roll!
     
  • yankeesfan123

    Earning My Ears
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    Jan 3, 2013
    I'm wondering if there's a difference here just in how the states view the burden of a complaint. My state (Arkansas) is supposedly fact pleading, but if I complained that there was a hazardous condition present and upon information and belief it existed for long enough for the defendant to address same and they failed to do so, we're going to get past MTD. That's really a "notice pleading" kind of hurdle, and every once in a while our supremes feel like they need to keep everyone on their toes and will uphold an MTD for this kind of stuff, but it's pretty rare.

    However, our slip and fall laws are very much like yours, and thus you're going to go through discovery to get those very answers you're listing.
    Ditto in CT. No motion to dismiss as we are a fact pleading state. But you could try a summary judgment after discover (although I think it would lose. Judges like to keep plaintiff attorneys happy and would find issues of fact, like if Disney knew or should have known about the slippery substance, for a jury to decide).
     

    jek22

    Earning My Ears
    Joined
    Jun 6, 2019
    Ditto in CT. No motion to dismiss as we are a fact pleading state. But you could try a summary judgment after discover (although I think it would lose. Judges like to keep plaintiff attorneys happy and would find issues of fact, like if Disney knew or should have known about the slippery substance, for a jury to decide).
    In Ny we are so back logged, i think it would be a successful motion. Plaintiff's self serving conclusory affidavit would not overcome what Def could present. Attached to a MTD, could also be the logs maintained by Janitorial staff, or whereever complaints of water would be recorded. I would assume Disney would have something like that, as all my construction clients maintain said logs.
     

    OKW Lover

    Retired and living 2 miles from The Castle.
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    The discussion about jurisdictions is kind of moot, isn't it? Where will the case be tried? FL?
     

    jjb1974

    Earning My Ears
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    Apr 25, 2018
    In Ny we are so back logged, i think it would be a successful motion. Plaintiff's self serving conclusory affidavit would not overcome what Def could present. Attached to a MTD, could also be the logs maintained by Janitorial staff, or whereever complaints of water would be recorded. I would assume Disney would have something like that, as all my construction clients maintain said logs.
    I don't like conclusory allegations, but sometimes you're limited by what the Defendant will provide in the usual run up to litigation. Here our big defense client is Wal-Mart (natch), and they have a stated policy of not releasing store video short of a lawsuit being filed. A client comes in and says "This happened in store" and Wal-Mart's case manager will view the video, tell you what they think happened (which, just, LOL, okay) and you go with that or you file suit. I have had *one* time they admitted anything at all happened without me seeing that video. It just acts as a financial barrier to plaintiffs.
    The discussion about jurisdictions is kind of moot, isn't it?
    Gave me perspective on why some folks said it would be easy to dismiss and others not so much 🤷‍♂️
     

    yankeesfan123

    Earning My Ears
    Joined
    Jan 3, 2013
    I don't like conclusory allegations, but sometimes you're limited by what the Defendant will provide in the usual run up to litigation. Here our big defense client is Wal-Mart (natch), and they have a stated policy of not releasing store video short of a lawsuit being filed. A client comes in and says "This happened in store" and Wal-Mart's case manager will view the video, tell you what they think happened (which, just, LOL, okay) and you go with that or you file suit. I have had *one* time they admitted anything at all happened without me seeing that video. It just acts as a financial barrier to plaintiffs.


    Gave me perspective on why some folks said it would be easy to dismiss and others not so much 🤷‍♂️
    I think the big picture is, while each state has their own procedural differences, a motion to dismiss and a motion for summary judgment end in the same result: the plaintiff loses and doesn’t even get to present his or her case in front of a jury.
     

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    Here our big defense client is Wal-Mart (natch), and they have a stated policy of not releasing store video short of a lawsuit being filed.
    This reminds me that Walt Disney Parks routinely claims that its contemporaneous (with the accident) are "Confidential Report of Incident" privileged from disclosure by work product. Take, for example, a car accident caused by a Disney employee. Disney claims that two Report of Incidents and a Written Statement taken the day of the accident are work product. They also claimed privilege and work product in the Disney driver's recorded statement two days after the accident. And when Donna Halcomb fell at the ESPN Wide World of Sports Complex on February 8, 2019, the "Confidential Reports of Incident" by two Disney Employee on February 8, 2019 were prepared in anticipation of a claim or litigation. Likewise, when Melissa Taylor tripped over another quest's "large suitcase on wheels" as she was exiting the Epcot Starbucks on November 18, 2017, two Confidential Report of Incident prepared that same day are work product.

    Disney, it seems, anticipates litigation anytime any guest reports an injury on property.
     

    jcb

    always emerging from hibernation
    Joined
    Apr 28, 2007
    Duffy Sues Disney
    Sorry, couldn't resist. Michelle Duffy filed a lawsuit claiming that she visited the MK on November 2, 2015, rode the Tomorrowland Speedway, but was injured when "the dangerous and defective car on the Tomorrowland Speedway ride malfunctioned and caused the steering ardor hydraulics to fail, causing the wheels on the car to bounce against the center guide rail repeated and in a violent manner." She "incurred loss of ability lead and enjoy a normal life."

    Silly me, I thought that was the point of the attraction.
     

    starry_solo

    DIS Veteran
    Joined
    Nov 19, 2010
    Yeah we can't attach to an MTD here, the complaint is taken on its face. You could file an answer with an affidavit and then move for judgment on the pleadings though.
    That's how it is in CA too....and in federal court.

    So, wow, NY, wow....what you would file in NY, we would call a motion for summary judgment in CA.
     


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