By Luke Mashburn, MS & Michael S. Carroll, PhD
A Texas woman has filed suit again the Houston Astros after suffering a severe injury to her finger at a July 8, 2018 Houston Astros game she attended with husband, father, and two sons.
The 35-year-old resident of Montgomery, Texas, Jennifer Harughty, alleges that she and her family were seated halfway up a lower level section down the third baseline when the incident occurred. In the seventh inning of the contest, the team’s costumed mascot, Orbit, fired a “bazooka-style” t-shirt cannon into the stands. The shirt struck her left index finger head-on, causing significant pain. As the game continued, Harughty experienced great pain and went to the emergency room immediately following the conclusion of the game.
There, she was informed that her finger was fractured and that the injury would require surgery, which occurred on July 12, 2018. After the procedure, Harughty went to physical therapy twice a week but saw little improvement in her pain, swelling, and lack of motion in the injured finger. In October of that same year, Harughty underwent a second surgery to remove the two pins placed in her index finger during the July surgery. As of the time of her filing, Harughty claims that her finger is locked in an extended position which causes little range of motion, discomfort, and permanent impairment.
Harughty claims that the Astros were negligent in a number of ways, including failing to use reasonable care in firing the t-shirt cannon, failing to provide warnings to invitees of the unreasonable risk of harm associated with t-shirt cannons, and failing to properly train and supervise staff and employees on the safe use of t-shirt cannons. She also claims that the team failed to ensure a safe premise for invitees by failing to have adequate policies and procedures in place to ensure safety, failed to minimize hazards associated with firing t-shirt cannons, and failed to follow t-shirt cannon safe use practices. Harughty claims damages in the form of physical pain and suffering, permanent impairment and its consequences, and mental anguish.
The case will likely hinge on two primary factors: the so-called “baseball rule,” Houston’s most obvious defense, and whether t-shirts are inherently dangerous as the plaintiff alleges. The baseball rule has been invoked almost every time a team has been sued by a fan injured by a ball that enter the stands. Courts often hold that fans cannot sue teams over balls and bats that enter the stands because it is an unavoidable risk of attending a game. Right or wrong, the reasonable standard in many states is that a fan assumes a reasonable amount of risk because objects leaving the field of play is an inherent part of the sport. A recent case, however, has set a precedent that an object thrown or launched into the stands, and not a part of the game itself, is not an assumed risk for fans.
In the most similar lawsuit to this case, Coomer vs. Kansas City Royals Baseball Corporation (2014),the Supreme Court of Missouri ruled that a Royals fan injured by a hotdog tossed by the team’s mascot was within his rights to sue the club. That court ruled that the case should be remanded to the lower court where a jury would have to decide if the mascot indeed injured Coomer and whether the mascot was negligent in doing so. In 2015, a jury decided that the Royals and its employee were not liable for the injuries that occurred at the game. The jury ruled that neither party was at fault for the injury. While Coomer was not watching the mascot during the promotion, the team’s employee did not throw the hotdogs in a way that was unreasonable or caused a greater risk of injury to fans. Despite the verdict, the Missouri case would likely set enough of a precedent to allow Harughty’s case to at least go to trial despite the baseball rule.
However, the jury’s ruling in Coomer’s case might not bode well for Harughty’s chances of prevailing over the Astros as it found that the team was not negligent in its mascot’s execution of the hotdog toss. Then again, Harughty’s lawyers will likely key on the use of an air-powered gun to fire a shirt into the stands, the major difference between Harughty’s and Coomer’s cases. Their initial filing claims that the team failed to use reason when using a t-shirt gun, failed to provide fans with a warning to the risks of the t-shirt gun, and failed to minimize or eliminate risks of using a t-shirt gun. The plaintiff’s counsel must prove that a team using a t-shirt gun to increase fan interaction is introducing unnecessary risk to those that attend games.
Surprisingly enough, this may not be an impossible task. While t-shirt cannons have become commonplace at many US sporting events, they have been proven dangerous in the past. A study by the United States Military Academy at West Point found that folded t-shirts shot from an air-power cannon achieved kinetic energies 15 times larger than that of a paintball gun, nine times larger than that of a pellet gun, and nearly half that of a 9mm handgun. According to that study, such energy can result in force strong enough to fracture multiple bones in an average human face when fired a mere 38 inches from the target. One would expect Harughty’s lawyers to call a number of expert witnesses on projectiles in the case.
Harughty has yet to speak out on how exactly the shirt hit her finger. It is currently unknown if she attempted to catch the shirt, if her hand was up to defend her face from impact, or if the shirt simply found its way to her finger through no action of Harughty’s. The case could take an interesting turn if Haughty attempted to catch the shirt. The Astros’ legal team would most surely attempt to establish that she assumed a certain amount of risk by trying to catch a shirt. Based on the results of the West Point study, if she was in fact shielding her face, then Haughty may have the upper hand in the case based on the location of hers at the time of impact.
If a second state rules that t-shirt tosses and other promotions are not inherent to the game, then it must be asked if teams are willing to assume the risk of holding such promotions, knowing they can be sued for them. While this will not likely impact professional teams, minor league teams in all sports and college athletics departments must consider this risk. These smaller teams and state institutions with lower budgets cannot face large lawsuits from injured fans. If teams do realize this risk, game production may be significantly impacted.
Game production includes all on-field and in-stadium activities that are not actually related to the game itself. Classic examples of this include the dizzy bat race, kiss cam, and, of course, the t-shirt cannon. Generally, on-field activities that require fan participation, including races and other physical endeavors, require a waiver. Staples such as the kiss cam, t-shirt tosses, and interaction with the mascot require no such waiver. If a second state rules that these activities are not inherent to the fan experience and an assumed risk, we may see the end of these in American sports.
Luke Mashburn is a Sport Management PhD student at Troy University. Professionally, he is the Director of Facility Operations for Atlanta United FC and previously worked in college athletics for a number of years. His career has focused on event and facility management. His research focus on the same, as well as the numerous legal issues around events and facilities.
Michael S. Carroll is an Associate Professor of Sport Management at Troy University specializing in research related to sport law and risk management in sport and recreation. He has published over 30 articles and delivered over 50 presentations at professional conferences. He lives in Orlando, FL.
