Mascots, Hot Dogs, and the "Baseball Rule"

NBC Sports reports:

If it had been a foul ball or broken bat that struck John Coomer in the eye as he watched a Kansas City Royals game, the courts likely wouldn't force the team to pay for his surgeries and suffering. 

But because it was a hot dog thrown by the team mascot - behind the back, no less - he just may have a case. 

The Missouri Supreme Court is weighing whether the "baseball rule" - a legal standard that protects teams from being sued over fan injuries caused by events on the field, court or rink - should also apply to injuries caused by mascots or the other personnel that teams employ to engage fans. Because the case could set a legal precedent, it could change how teams in other cities and sports approach interacting with fans at their games.

Fox News elaborates on the facts:

Coomer, of Overland Park, Kan., says he was injured at a September 2009 Royals game when the team's lion mascot, Sluggerrr, threw a 4-ounce, foil-wrapped wiener into the stands that struck his eye. He had to have two surgeries -- one to repair a detached retina and the other to remove a cataract that developed and implant an artificial lens. Coomer's vision is worse now than before he was hurt and he has paid roughly $4,800 in medical costs, said his attorney, Robert Tormohlen.

Normally, courts apply the "baseball rule" in cases involving injuries at baseball stadiums.  Attendees are typically held to have assumed the risk that they would be hit by a fly ball or fragmented bat if an injury of that sort takes place.

But this rule has its limits.  For instance, in Lowe v. California League of Professional Baseball, 65 Cal. Rptr. 2d 105 (1997), the California Court of Appeal overturned a trial court's grant of summary judgment against a plaintiff who was suing after being struck by a foul ball while watching the Rancho Cucamonga Quakes at their home field.  The court noted that immediately before the injury, the plaintiff was distracted by the Quakes' dinosaur mascot, Tremor.  Tremor was hitting the plaintiff with his tail, which drew the plaintiff's attention.  Upon returning his attention to the field, the plaintiff was immediately struck by the ball.

The court held that the baseball rule did not bar the plaintiff's lawsuit.  It noted that the baseball rule exists to prevent lawsuits based on risks that are inherent to the observation of a baseball game.  The court held that Tremor's actions did not fit into this category, noting that "the antics of the mascot are not an essential or integral part of the playing of a baseball game."

It will be interesting to see how the Missouri case turns out.  I could not find any Missouri cases that mention "baseball rule," so it is likely that the Court will draw on authority from other jurisdictions.  I think that the Lowe reasoning would certainly help the plaintiff here, since the injury-causing object was a hot dog and not a ball or bat fragment, and because the hot dog was thrown by a mascot.

On the other hand, here, the mascot, Sluggerrr was not distracting the plaintiff, so the defendant may argue that he should have been alert to possible risks of flying objects.  Moreover, Sluggerrr was throwing a hot dog into the crowd -- an object that is far less dangerous than a fly ball or bat fragment.  The mascot's actions mirrored events that would typically be covered by the baseball rule, with the only difference being that the plaintiff was probably injured far less than he would have been had he been struck by a ball.

I think that if the Missouri Supreme Court takes the breadth of Lowe's language seriously, it may end up finding in the plaintiff's favor.  The tossing of a hot dog (a quintessential relic of baseball) may be negated by the antics of the mascot (a not-so-quintessential part of the game).  The facts of the Missouri case are pretty different, however, so the Missouri Supreme Court can probably distinguish Lowe if it wishes to decide the case on alternate grounds.