By Joshua D. Winneker, JD
Recently, during a Philadelphia Phillies’ home game, the “Philly Phanatic” mascot engaged in his customary hot dog launch to the fans sitting behind home plate. Every fan, however, did not enjoy the flying food as Kathy McVay was sent to the hospital after being struck in the face with a hot dog wrapped in duct tape. McVay stated that the hot dog “came out of nowhere” knocking the glasses off her face. She underwent a CT-Scan and was diagnosed with a hematoma in her eye. Fortunately for the Phillies, McVay is a fan and reportedly is not seeking legal action at this time leaving the Phillies’ apology and offer of future tickets as a possible resolution to the matter.
Even though some may find this comical (which McVay also noted), her injuries were real and she is not precluded from filing a negligence lawsuit at a later date as long as it is within the applicable statute of limitations. If she did pursue a lawsuit against the Phillies, through the actions of its employee the Phanatic, would she be successful? The short answer is potentially yes.
Patrons in the stands of a baseball stadium getting hit by flying objects and subsequently filing lawsuits against the stadium owners are not a novel concept. In fact, there is a large body of case law dealing with this subject with jurisdictions varying on how they handle these types of cases. Some jurisdictions follow what is known as the “limited duty rule” or the “baseball rule” where a stadium owner has a limited duty to fulfill to the fans by providing and maintaining protective netting and seating in the most dangerous zones in the ballpark (typically behind home plate). Once that limited duty is fulfilled, if a fan is hit with a flying ball or bat the stadium owner is not liable for the injuries. Other jurisdictions though do not utilize the baseball rule, but instead analyze the cases under “comparative negligence” principles, which is when the court will look at the negligence of both the stadium owner and the fan in causing the injury.
Pennsylvania actually does not fall into either of these categories as it applies the “no-duty rule” to determine the cases. Under Pennsylvania law, the stadium owner has no duty to protect fans from risks that are inherent to the game of baseball. It is widely established that flying balls and bats into the stands are inherent to the game of baseball, but what about flying hot dogs?
Amazingly, this is not the first time that a fan was hit in the eye with a hot dog by a mascot at a baseball game. The Kansas City Royals were most recently embroiled in a years-long lawsuit involving a fan, John Coomer, getting hit in the eye by their mascot, Sluggerrr, during the Royals’ version of a mascot hot dog launch. Coomer required multiple eye surgeries and his lawsuit eventually reached the Missouri Supreme Court. The Missouri Supreme Court ruled that Coomer did not assume the risk of injury from a flying hot dog because while mascot antics may be common, they are not inherent to the sport of baseball like flying balls and bats. Indeed, the game of baseball can still be played without the use of mascots. The court’s decision was in-line with a prior appellate court case in California that also ruled that mascot antics are not inherent to the sport of baseball.
Under Pennsylvania law, inherent means “common, frequent and expected.” While the Phillies can certainly make the argument that the hot dog launch is something that is common, frequent and expected at a Phillies’ home game, this same argument was rejected by the Missouri Supreme Court when the Royals asserted that their hot dog toss was inherent because it had occurred for 14 straight years before Coomer was hit. Moreover, McVay also stated after the Phillies’ game that she understood the risks of getting hit with a baseball at a game, but not a hot dog.
McVay apparently also has a shoulder injury that will require surgery and that may have prevented her from effectively catching or deflecting the launched hot dog during the game. Unfortunately for the Phillies, her pre-existing condition would also likely not be a valid defense against her potential lawsuit as the defendant “takes the plaintiff as he finds him” and McVay would still be able to recover for her injuries.
Hopefully this unlucky situation does not result in a lawsuit, but if it does, the Phillies could be facing liability. Ironically, when a new Sluggerrr was hired to replace the mascot who injured Coomer, the Royals brought in the Phanatic to train the next Sluggerrr. Proper instruction does not appear to be the issue; rather it might be time to simply stop launching wrapped hot dogs into a crowd of people.
Joshua D. Winneker, JD – Assistant Professor of Business Law/Sport Law at Misericordia University in Dallas, PA.
