By Scott A. Andresen, ESQ.
Introduction
In the never-ending quest to enhance the game day experience of its fans, baseball teams have increasingly looked to in-game giveaways delivered by mascots, cheerleaders, spirit teams and the like. The vast majority of the time, a rolled up t-shirt launched from an air cannon, or an encased meat product tossed by a mascot, is an enjoyable and liability-free experience for all involved parties. However, recent guidance by the Missouri Supreme Court in Coomer v. Kansas City Royals should put all teams on notice that certain precautionary measures are necessary to ensure that an errant wiener doesn’t make the organization a loser in the courtroom.
Background
On September 8, 2009, John Coomer and his father were connoisseurs of the last-place brand of baseball that was being served up by the Kansas City Royals. Due to the “intimate” nature of attendance that evening, Coomer and his father upgraded their seating arrangements mid-game to seats six rows behind the visitor’s dugout. Unbeknownst to Coomer, he had moved directly into a danger zone of projectile sausages launched by the Royals mascot, Sluggerrr. At some point during the fateful evening of September 8th, Sluggerrr utilized an underhand, sidearm or behind-the-back method to launch a hot dog in the direction of Coomer, striking Coomer in the eye. Several days later, Coomer was diagnosed with a detached retina.
The Lawsuit
In February 2010, Coomer filed suit againt the Kansas City Royals alleging negligence and battery.[1] Coomer asserted that the Royals (through its employee, Sluggerrr) were negligent in failing to exercise ordinary care in throwing hotdogs into the stands, that the team failed to adequately train its mascot/employee on how to throw hotdogs into the stands safely, and that the team failed to adequately supervise its mascot’s activities, namely the now-infamous hotdog toss. In its answer, the Royals admitted responsibility for Sluggerrr’s acts but denied he had been negligent. The Royals also asserted affirmative defenses of assumption of the risk and comparative fault.
At the close of the evidence, Coomer moved for a directed verdict on the issues of comparative fault and assumption of the risk. He argued that implied primary assumption of the risk “only applies to risks that are inherent in the nature of the activity” and, in this case, “the harm of getting hit with a hotdog has absolutely no relationship to going to a baseball game.” Regarding comparative fault, Coomer argued that, as a matter of law, he could not have been negligent merely for not fleeing his seat during the hotdog launch. The trial court overruled Coomer’s motion, holding that both: (a) whether the risk of being injured by Sluggerrr’s hotdog toss is one of the risks inherent in watching a Royals game, and (b) the reasonableness of Coomer’s actions, were proper questions for the jury. The jury returned a verdict in favor of the Royals, assessing zero percent of fault to the Royals and 100 percent of fault to Coomer. Coomer appealed.
The Missouri Supreme Court
After a detailed discussion of the Assumption of Risk Doctrine, the Missouri Supreme Court went on to discuss the immediately-relevant issue of risks assumed by spectators at sporting events. The Court cited “an overwhelming majority of courts” that had long recognized that spectators at sporting events are exposed to certain risks that are inherent merely in watching the contest. Accordingly, under what is known as implied primary assumption of the risk, courts generally hold that a home team was not liable to a spectator injured as a result of such risks, e.g., when a baseball park owner fails to protect each and every spectator from the risk of being injured by a ball or bat flying into the stands. This so-called “Baseball Rule” states:
[W]here a baseball game is being conducted under the customary and usual conditions prevailing in baseball parks, it is not negligence to fail to protect all seats in the park by wire netting; and that the special circumstances and specific negligence pleaded did not aid plaintiff or impose upon the defendant a duty to warn him against hazards which are necessarily incident to baseball and are perfectly obvious to a person in possession of his faculties.[2]
All of the cases cited by the Court emphasized that when due care has been exercised to provide a reasonable number of screened seats, there remains a hazard that spectators in unscreened seats may be struck and injured by balls which are fouled or otherwise driven into the stands. This risk is a necessary and inherent part of the game and remains after ordinary care has been exercised to provide the spectators with seats which are reasonably safe. It is a risk which is assumed by the spectators because it remains after due care has been exercised and is not the result of negligence on the part of the baseball club. It is clearly not an unreasonable risk to spectators which imposes a duty to warn [or protect].[3] The Court went on to state:
Anderson and Hudson (See Footnote 2 below) are just two of the many dozens of cases around the country holding that, as long as some seats directly behind home plate are protected, the team owes “no duty” to spectators outside that area who are injured by a ball or bat while watching a baseball game. Despite being decided by such different courts across so many decades, all of these cases reflect certain shared principles. First, it is not possible for baseball players to play the game without occasionally sending balls or bats (or parts of bats) into the stands, sometimes at unsafe speeds. Second, it is not possible for the home team to protect each and every spectator from such risks without fundamentally altering the game or the spectators’ experience of watching it through such means as: (a) substituting foam rubber balls and bats that will not injure anyone (or be very fun to watch); (b) erecting a screen or other barrier around the entire field protecting all spectators while obstructing their view and making them feel more removed from the action; or (c) moving all spectators at least 600 feet away from home plate in all directions. Third, ordinary negligence principles do not produce reliably acceptable results in these circumstances because the risk of injury (and the extent of the harm) to spectators is substantial, yet the justification for not protecting spectators from that risk can be expressed only in terms of the amusement or entertainment value of watching the sport that brought the spectators to the stadium in the first place.
But, the Court cautioned, the “Baseball Rule” extends only to those risks that the home team is powerless to alleviate without fundamentally altering the game or spectator’s enjoyment of it. The home team still owes a duty of reasonable care not to alter or increase such inherent risks.[4] The key inquiry is whether the risks that lead to a spectator plaintiff’s injury involved some aspect of the game which is inevitable or unavoidable in the actual playing of the game. If Coomer was injured by a risk that is an inherent part of watching the Royals play baseball, the team had no duty to protect him and cannot be liable for his injuries. But, if Coomer’s injury resulted from a risk that is not an inherent part of watching baseball in person–or if the negligence of the Royals altered or increased one of these inherent risks and caused Coomer’s injury–the jury is entitled to hold the Royals liable for such negligence and, to the extent the reasonableness of Coomer’s actions are in dispute, the jury must apportion fault between the parties using comparative fault principles.
The Court went on to hold 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. This risk, the Cout stated, 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. The Court went on to say that Sluggerrr’s tosses may or may not be negligent, a question of fact for the jury to decide.
The Court then vacated the lower court decision in favor of the Royals and remanded the case for a determination of negligence on the part of the Royals organization.
What Teams Should Learn From Coomer
Regardless of whether a team employs its mascot or hires independent contractor vendors to perform such services, the team will generally be held responsible for the actions of its mascot. To that end, and in order to ensure that the antics of a mascot don’t pull a team out of the ballpark and into a courtroom, teams should take a number of precautions.
Directly related to the Coomer case, and much like the lesson learned by the National Football League in the Orlando Brown case almost fifteen years ago[5], any seemingly-benign projectile can become a major liability risk when it strikes an individual in the eye. To that end, teams should implement safety procedures for persons throwing, tossing or shooting items towards its fans. Simple measures that immediately come to mind are:
When possible, mascots should make eye contact with the person towards whom an item will be handed/thrown/shot;
When not simply handing or softly tossing items to spectators, mascots should throw/shoot items in an “arc” so that they are on a downward trajectory when they arrive at their intended destination; and
Teams should take care to package thrown items in such a way as to create a decreased potential for harm (e.g., making items blunt rather than elongated or sharp).
Sports risk management specialist, Paul Onest, further recommends the following precautionary measures when it comes to mascots:
Have one or more staff members accompany the mascot to provide assistance, and also to head off or address any problems that may arise;
Review all the activities of the mascot to identify potential problems. For example, if a mascot is to utilize an air cannon, ensure that the mascot is properly trained in the safe operation of that equipment; and
Specifically review how your organization wants its mascot to interact with spectators. For example, do not pick up or swing spectators, or retaliate against abusive persons. Further, when hugging spectators, employ the “head and back” rule. For hugging, keep the hands on the back or shoulders and above the belt. For other forms of interaction, mascots should simply pat spectators on the head, shoulder, or back; and
No spectators should be allowed to jump on a mascot, or vice versa.
Conclusion
Mascots are a fun and fan-friendly way to enhance the game day experience for a team’s spectators, but courts are in agreement that mascots are not subject to the “Baseball Rule” as they are not an inherent, inevitable or unavoidable part of watching a baseball game. As such, teams must take proactive, precautionary measures to ensure that their mascots are not causing harm or injuries to fans that could subject a team to losses that show up in a court order rather than in the standings.
[1] See Coomer v. Kan. City Royals Baseball Corp., 2014 Mo. Lexis 154 (Mo. June 24, 2014).
[2] See Anderson v. Kansas City Baseball Club, 231 S.W.2d 170, 172 (Mo. 1950). Anderson was based on the Missouri Supreme Court’s earlier decision in Hudson v. Kansas City Baseball Club, 164 S.W.2d 318, 320 (Mo. 1942), which used the following “no duty” language of implied primary assumption of the risk to explain its holding: The basis of the proprietor’s liability is his superior knowledge and if his invitee knows of the condition or hazard there is no duty on the part of the proprietor to warn him and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does and then by voluntarily acting, in view of his knowledge, assumes the risks and dangers incident to the known condition.
[3] See Anderson, 231 S.W.2d at 173.
[4] See Lowe v. California League of Prof. Baseball, 56 Cal. App. 4th 112 (1997) where the court explained the “no duty” rationale as such: Foul balls hit into the spectators’ area clearly create a risk of injury. If such foul balls were to be eliminated, it would be impossible to play the game. Thus, foul balls represent an inherent risk to spectators attending baseball games. Under Knight, such risk is assumed. (citing Knight v. Jewett, 834 P.2d 696, 698 (Cal. 1992)).
[5] See Brown v. National Football League, 219 F.Supp.2d 372 (2002).
