That's disingenuous. Menu being on Disney's website makes Disney more than a landlord, more like a service provider. Is Disney responsible for what's on its site or not? What if the menu had some hate speech or terrorism?
Disney Springs is a mall. Most malls re-publish menus and other relevant materials on behalf of their lessees on their website for the benefit and convenience of the consumer.
The idea that this act is somehow an endorsement of said materials is what is disingenuous. Nowhere does Disney claim that they have validated the menu as correct, and I personally don't think it is reasonable for someone to imply that they are doing so. If the restaurant is liable due to misrepresentations they made in their menu, they made those same misrepresentations to Disney as much as to the plaintiff.
Even if you do think they are less landlord and more "service provider", that doesn't matter much either, given Section 230 of the CDA. Service providers are indeed not liable for hate speech and "terrorism" created by 3rd parties.
On top of all that, finding Disney at fault on account of publishing a menu also requires that the restaurant is actually at fault in the first place, which has not been demonstrated.
Usually sites redirect you to another site with a modal heavily disclaiming that they are in any way related or responsible for content. If Disney did not do that and it's on their site then sure they use the CDA backstop if they can demonstrate they are not the source of the menu. Why are you certain the menu isn't co-developed or branded in some way though? I'm not sure why to even bring up the Disney+ user agreement if it were so clearcut, especially as it engages at the level of presuming the service is indeed a Disney one. Isn't it curious?
That's a fair point. I looked at the websites of some other malls and it does seem like Disney has gone "above and beyond" to re-publish the menu in its entirety on their website, where other malls would just link to the lessee's website for that purpose.
However, I have now checked the Wayback Machine to see what the website looked like[1] in September 2023 (before the death in October 2023), and honestly even if Disney themselves produced this menu content (which does not seem to be what the plaintiff is claiming), then it still feels like the plaintiff has misrepresented what was on this website. Specifically the plaintiff says that the menu claimed items were "allergen-free", when in actuality the disclaimer specifically says the restaurant does not claim that.
Copying the relevant section from the end of the menu:
> About our allergy-friendly menu items: Guests may consult with a chef or special diets trained Cast Member before placing an order. We use reasonable efforts in our sourcing, preparation and handling procedures to avoid the introduction of the named allergens into allergy-friendly menu choices. While we take steps to prevent cross-contact, we do not have separate allergy-friendly kitchens and are unable to guarantee that a menu item is completely free of allergens. Allergy-friendly offerings are reliant on supplier ingredient labels. We cannot guarantee the accuracy of the contents of each food item. Allergen advisory statements (e.g., "may contain") are not regulated and therefore not taken into consideration when developing allergy-friendly meals. It is ultimately our Guests' discretion to make an informed choice based upon their individual dietary needs.
> Menu items and prices are subject to change without notice.
> * Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness.
> Our plant-based menu items are made without animal meat, dairy, eggs and honey.
> then it still feels like the plaintiff has misrepresented what was on this website. Specifically the plaintiff says that the menu claimed items were "allergen-free", when in actuality the disclaimer specifically says the restaurant does not claim that.
Well, while the website definitely puts a lot of distance on allergen-free; if you can't offer a food allergen-free then you shouldn't. Same as if you can't take the bones out of a chicken wing; don't offer boneless wings.
However, if you go to the restaurant in-person and you ask the server who asks the chef and they both say it can be done allergen-free on multiple requests I think it's safe to safe that the website's disclaimer is overriden. Which is what the lawsuit claims [1] (I wish I could get a courtlistener link but I had no success [2]).
Sure that overrides the disclaimer for the restaurant, and I'm inclined to agree with you there because every restaurant has some disclaimer like this that if enforced would make any "allergen-free" claims worthless everywhere.
But that would still make Disney less liable, because the in person conversation with staff/chef has nothing to do with Disney here.
Although it is interesting that the restaurants operated by others still use the "cast member" language. I do think Disney tries to have a bit of an illusion that everything on property including Disney springs is them. I still wouldn't consider it enough legally here but there is at least an argument about assumption of oversight.
The idea that this act is somehow an endorsement of said materials is what is disingenuous. Nowhere does Disney claim that they have validated the menu as correct, and I personally don't think it is reasonable for someone to imply that they are doing so. If the restaurant is liable due to misrepresentations they made in their menu, they made those same misrepresentations to Disney as much as to the plaintiff.
Even if you do think they are less landlord and more "service provider", that doesn't matter much either, given Section 230 of the CDA. Service providers are indeed not liable for hate speech and "terrorism" created by 3rd parties.
On top of all that, finding Disney at fault on account of publishing a menu also requires that the restaurant is actually at fault in the first place, which has not been demonstrated.