Pat Murphy, The Daily Record Newswire
Baseball fans assume the risk of being struck by foul balls, not hotdogs flung by a team mascot named “Sluggerrr.”
That pretty much sums up a recent ruling from the heartland.
“The risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game,” explained Missouri Court of Appeals Judge Thomas H. Newton in Coomer v. Kansas City Royals. “Consequently, a plaintiff may not be said to have consented to, and voluntarily assumed, the risk merely by attending the game.”
The court’s decision gives John C. Coomer a new trial in his personal injury suit against the Kansas City Royals.
On Sept. 8, 2009, Coomer attended a Royals game at Kauffman Stadium in Kansas City, Mo. Coomer sat about six rows behind the third base dugout. After the end of the third inning, the Royals had a promotional event, the “Hotdog Launch.” The Hotdog Launch has been a fan favorite since about 2000.
In between innings, the Royals launch 20-30 hotdogs into the stands. The hot dogs are either shot out of an air gun or thrown by Sluggerrr, the team mascot. Sluggerrr is some guy in a lion costume. While the hotdogs shot out of the air gun are wrapped in bubble wrap, Sluggerrr typically chucks hotdogs wrapped in foil.
As fans wildly cheered Sluggerrr performing his Hotdog Launch routine from the third base dugout, Coomer made the mistake of taking a glance at the scoreboard. Coomer would testify that “a split second later” he was hit in the face by a hotdog. According to Coomer, the team mascot had thrown the hotdog with enough force to knock off his hat.
A few days later, Coomer noticed some problems with his vision. Doctors discovered that Coomer had a detached retina. Following surgery, Coomer developed a cataract. In Dec. 2009, Coomer had an additional surgery to remove the cataract and place an artificial lens in his eye.
In Feb. 2011, Coomer sued the Kansas City Royals in Missouri state court, alleging that his eye injury was the result of the team’s negligent supervision and training of Sluggerrr.
A Jackson County jury returned a verdict for the Royals in March 2011, finding that Coomer had assumed the risk of his injury.
But the Missouri Court of Appeals concluded that primary implied assumption of risk was not available to the Royals as a defense. Writing for a unanimous three-judge panel, Judge Newton explained that the trial court made the mistake of focusing on the fact that the Hotdog Launch was a well-established feature of Royals home games in deciding to submit the issue of assumption of risk to the jury.
“That the launch was a customary activity, however, does not equate to a patron’s consent to the risks of being hit by a promotional item,” Newton wrote. “Inherent risks are those that inure in the nature of the sport itself.”
So Coomer gets a new trial, one in which the Royals won’t have the benefit of arguing assumption of risk. Looks like an auspicious time for settlement talks.
