The Kansas City Royals (the “Royals”) have lost a motion for summary judgment in John Coomer v. Kansas City Royals Baseball Corporation, 1016-CV4073, Circuit Ct, Jackson, Cty. February 9, 2011, a well-publicized lawsuit arising out of the antics of the team’s mascot, Sluggerrr. Coomer claimed that he was seriously injured when Sluggerrr, perhaps discharging his mascot duties with too much zeal and “hot-dogging” for the fans, hit him in the eye with a hot dog thrown during the popular “Hot Dog Toss” promotion.
Coomer’s lawsuit asserted one count of negligence and one count of battery against the Royals. The Royals argued, in part, that implied assumption of risk was a complete bar to the lawsuit.
There seemed to be little dispute that the risk of being struck by an errant object (even a tossed hot dog) was a well-known or incidental risk associated with a professional baseball game, of which Coomer was aware and to which he consented. Coomer argued, however, that the Royals, by and through its employee Sluggerrr, failed to exercise reasonable care in tossing hot dogs into the stadium seating area due to the manner in which the Hotdog Toss promotion was performed. Sluggerrr allegedly did not throw the hot dog in an arc high into the stands. Rather, he projected the hot dog directly into Coomer, who was seated only a few feet away. Coomer successfully argued that the Royals’ purported failure to supervise and train Sluggerrr regarding the proper method to toss a hot dog into the stands caused his injuries, and was not the sort of risk he assumed when he attended the baseball game. The court did dismiss the battery claim, because although the toss may have been negligent, there was no evidence that Sluggerrr, or anyone on behalf of the Royals, intended to harm Coomer.
This decision appears to be at odds with a 2009 decision by New York’s Appellate Division, Second Department, which precluded a Shea Stadium concession vendor from recovering for injuries allegedly sustained after he was struck by a spectator who sought a t-shirt that had been “launched” into the stands as part of an in-game promotional event. In Cohen v. Sterling Mets, L.P., 58 A.D.3d 791; 870 N.Y.S.2d 914 (2d Dep’t, 2009), the court affirmed the dismissal of the plaintiff’s negligence action against Sterling, applying the doctrine of assumption of the risk of an open obvious condition. The Cohen court further held that a spectator at a sporting event is deemed to have consented to those risks commonly appreciated which are inherent in and arise out of the event – those risks include the risk of injury presented because bats, balls or even t-shirts that may enter the stands.
Interestingly, the Missouri court’s decision did acknowledge that the Hotdog Toss is one of the inherent, common risks of injury associated with a baseball game that a spectator may assume. As such, this may be the first time a court has held that such a promotional activity presents a similar risk of injury to a spectator (Cohen involved a vendor – which, we would argue is a distinction without a difference) at a baseball game as an errant baseball or bat does. So, although the Royals lost this motion, the decision in Coomer could conceivably open the door for other teams and venues to argue that spectators injured by flying hot dogs and T-shirts (if the tosses are performed with due care) assumed the risk of injury and are precluded from bringing suit. This is certainly a result that teams and venues should relish.
Carla Varriale is a partner at Havkins Rosenfeld Ritzert and Varriale, LLP in New York. Her practice is focused on the representation of teams, leagues and sports and recreation venues. She can be reached at carla.varriale@hrrvlaw.com.
