www.loubar.org 4 Louisville Bar Briefs Arbitration Clauses: To Infinity and Beyond Chief Judge Ann Bailey Smith Who doesn’t love going to Disney World, frequently referred to as “the happiest place on earth”? Okay, there may be some of you who are not Disney fans… It’s too hot in Or- lando, the lines are too long, it’s too expensive. I love Disney World and, with the exception of the Outer Banks, I do find it to be one of the happiest places on earth. Last summer I went with two of my grandchildren, both 5 years old at the time, and it was nothing short of magical seeing Disney World through their eyes. Hopefully I’ve caught your attention and drawn you in, because what this article is re- “Our courts have their faults as does any human institution, but in this country our courts are the great levelers, and in our courts all men are created equal.” From “To Kill a Mockingbird” by Harper Lee must be a voluntary, complete assent by the parties having capacity to contract.” Conners v. Eble, 269 S.W. 2d 716, 717 (Ky. 1954). In the nursing home cases, the issue to be decided by the court is whether the resident had the mental capacity to enter into the Alternate Dispute Resolution Agreement, which is usu- ally included in the documents the resident is presented with and asked to execute at the time of admission. So, this brings us back to Disney. You may have read or heard about the arbitration issue involving Disney. A woman and her husband were dining at a restaurant in Disney Springs in 2023 when she had a severe allergic reac- tion to the food she was eating and died. Her husband filed a wrongful death lawsuit against Disney claiming that the restaurant had been made aware of her dairy and nut allergies yet did not take proper precautions in preparing her meal. Disney responded by saying that there was a binding arbitration clause between Disney and the husband because he had signed up for a free trial of Disney+ in 2019 which contained such a clause. It has been reported that the husband did not continue with Disney+ beyond the free trial period. Disney further argues that the arbitration clause was also included when the husband bought tickets for the theme park, although Disney park tickets are not needed to enter Disney Springs. The husband’s attorney calls Disney’s argument for arbitration of the wrongful death suit preposterous. Disney is not the only company that is seeking to expand the reach of an arbitration clause when it is facing a lawsuit by a customer. Walmart and Airbnb are increasingly seeking to forego litigation in a court of law in favor of arbitration. In order to use these companies’ services, customers must agree to terms of use which incorporate arbitration agreements. Those arbitration agreements, the compa- nies argue, cover affiliates of the company and extend to any complaint regardless of whether it’s related to the original transaction that prompted the arbitration agreement. This has come to be known as “the infinite arbitration clause” by those who oppose this wide-ranging interpretation. An example of this involves a family falsely accused of shoplifting at a Walmart store in Roanoke, Virginia. After the family of four had paid for their purchases and were ally about is… Arbitration. There is a Disney element to this, but I thought if I started the article writing about arbitration, then you would quickly be flipping to the next page of Bar Briefs. Arbitration is a method for dispute resolution which does not involve a judge or a jury but is agreed to by the parties to a contract where a neutral third party hears the evidence and decides the case. Arbitration can be binding on the parties where they agree to accept the arbitrator’s decision as final, or arbitration can be non-binding which means that if one of the parties is dissatisfied then the case can proceed in court. My contact as a circuit court judge with arbitration typically comes in the form of a motion to stay proceedings and compel ar- bitration filed by a nursing home in response to a complaint filed by the resident or the administrator of the resident’s estate for neg- ligence. KRS 417.050 provides that a written agreement to submit any controversy to arbi- tration “is valid, enforceable and irrevocable, save upon such grounds as exist at law for the revocation of any contract.” Moreover, “[t] o create a valid, enforceable contract, there PROFESSIONAL EXCELLENCE (continued on next page)