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Wednesday, June 25, 2014

"Being Injured by Sluggerrr’s Hotdog Toss is Not a Risk Inherent in Watching Royals Baseball"

So holds the Kansas Supreme Court. Back in 2009, John Coomer was injured by a flying hot dog thrown by the Kansas City Royals mascot, Sluggerrr. Yesterday, the Kansas Supreme Court overturned the trial court's dismissal of Coomer's lawsuit and held that Coomer can sue the team for negligence. The full opinion of the court is available here, and the Kansas City Star's report on the ruling is available here (H/T: Howard Bashman's How Appealing)

I blogged about this case last November, where I noted that this case presented the question of whether the Coomer's injury resulted from a risk inherent in watching a baseball game. Under the "baseball rule," courts hold that fans who are injured by stray baseballs or bat fragments have assumed the risk of these injuries by attending the game, since foul balls and flying bats are an unavoidable risk of the game. Because fans assume the risk, they cannot sue the team for negligence.

Here are some excerpts of the Court's analysis on why the baseball rule does not Coomer's lawsuit. It's a long quote, but I think its approachable language and no-nonsense treatment of the baseball rule makes it worth posting:

The Royals admit that, “[s]trictly speaking, this is not a baseball rule case” because Coomer does not claim he was injured by a foul ball or loose bat. But, because it claims the Hotdog Launch is a “common sense” activity, the Royals contend that the same implied primary assumption of the risk rationale should apply and bar all recovery by Coomer. According to the Royals, the risk to a spectator of being injured by Sluggerrr’s hotdog toss shares the same essential characteristics as the other risks that this Court (and many others) determined long ago were inherent in watching a baseball gamein person, i.e., risks that a spectator will be injured by a flying ball or bat. The Court disagrees.


The rationale for barring recovery for injuries from risks that are inherent in watching a particular sport under implied primary assumption of the risk is that the defendant team owner cannot remove such risks without materially altering either the sport that the spectators come to see or the spectator’s enjoyment of it. No such argument applies to Sluggerrr’s hotdog toss. Millions of fans have watched the Royals (and its forebears in professional baseball) play the National Pastime for the better part of a century before Sluggerrr began tossing hotdogs, and millions more people watch professional baseball every year in stadiums all across this country without the benefit of such antics.

. . .


The Hotdog Launch is not an inherent part of the game; it is what the Royals do to entertain baseball fans when there is no game for them to watch. Sluggerrr may make breaks in the game more fun, but Coomer and his 12,000 rain-soaked fellow spectators were not there to watch Sluggerrr toss hotdogs; they were there to watch the Royals play baseball.

. . .

Accordingly, the Court holds as a matter of law that the risk of injury from Sluggerrr’s hotdog toss is not one of the risks inherent in watching the Royals play baseball that Coomer assumed merely by attending a game at Kauffman Stadium. This risk can be increased, decreased or eliminated altogether with no impact on the game or the spectators’ enjoyment of it. As a result, Sluggerrr (and, therefore, the Royals) owe the fans a duty to use reasonable care in conducting the Hotdog Launch and can be held liable for damages caused by a breach of that duty.

As I predicted in my earlier post on the case, the Court relied on Lowe v. California League of Professional Baseball to conclude that the risk Coomer faced was not a risk inherent to the sport of baseball. The Court acknowledged that flying balls and bat fragments are unavoidable risks fans face at a baseball game. And hot dogs have been associated with the game for time immemorial. But combining these two essential features of baseball creates a risk that fans do not assume.

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