By Jordan Kobritz
When fans make plans to attend a sporting event they rarely contemplate the risk to life and limb that may lurk within stadiums and arenas. Jennifer Harughty was one such fan, until she attended a Houston Astros game at Minute Maid Park on July 8, 2018.
Jennifer was injured when she was struck by a T-shirt fired from an air-powered cannon wielded by the team’s mascot, Orbit. Harughty claims her left index finger was shattered, leading to two surgeries, the first to insert two screws into the injured finger and a second to remove them and attempt to restore range of motion to the finger. Last month she filed suit against the Astros seeking damages in excess of $1 million.
The lawsuit characterizes the cannon as “bazooka-style,” similar to ones used by teams across the sports landscape. In their constant quest to provide unique and exciting “entertainment,” teams have engaged in an “arms race” to see who can boast the biggest, most powerful cannon. Harughty isn’t the first fan to suffer an injury at the hands of an armed mascot.
A woman attending a Phillies game last June suffered a black eye when she was struck by a duct tape-covered hot dog fired from a cannon brandished by the Phillie Phanatic, the team’s iconic mascot. The Phillies apologized and gave the woman free game tickets, which thus far has headed off legal action.
The Astros, like most clubs, refused to reimburse Harughty’s medical expenses, perhaps fearing such action could be interpreted as an admission of liability. Clubs take the position, supported by language on their website and on ticket backs, and reinforced with PA announcements and in-stadium signage, that fans assume all normal and foreseeable risks associated with the sport when they enter a stadium. A majority of courts side with the teams by applying the “Baseball Rule,” first adopted over a century ago, when deciding negligence cases. Essentially, the rule states that if teams provide adequate seating behind a protective screen for those fans who request it, they are not liable for injuries resulting from flying bats and balls.
Harughty’s attorney, Jason Gibson, argues the Baseball Rule shouldn’t apply to his client. Gibson says, “…you don’t assume the risk of having someone fire a cannon at you that creates that much force at that proximity that can cause that kind of damage.” His logic is difficult to refute.
When the Baseball Rule was first adopted, mascots armed with powerful cannons weren’t prowling stadiums armed with powerful cannons. But the sports world has changed since then. At some stadiums, the games have become sideshows to the entertainment, leading to fan distraction.
For example, Arizona Diamondbacks fans at Chase Field in Phoenix seem more interested in the Kiss Cam, watching the scoreboard or socializing with their seatmates than how their team is doing on the field. At the other end of the spectrum are Red Sox fans in Fenway Park who focus on virtually every pitch.
While sympathy may lie with Harughty, the law currently sides with the Astros. But a continued escalation in firepower may ultimately shift the legal advantage to plaintiffs.
Jordan Kobritz is a non-practicing attorney and CPA, former Minor League Baseball team owner and current investor in MiLB teams. He is a Professor in the Sport Management Department at SUNY Cortland and maintains the blog: http://sportsbeyondthelines.com The opinions contained in this column are the author’s. Kobritz can be reached at: email@example.com