R. Douglas Manning, Ph.D.
The state of Missouri once again became a focal point for cases involving projectiles leaving the field of play at baseball games and the subsequent injuries which have been known to occur. However, unlike the historical Missouri cases of Crane v. The Kansas City Baseball and Exhibition Company (1913), Edling v. Kansas City Baseball & Exhibition Company (1914), Olds v. St. Louis National Baseball Club (1937), Hudson v. Kansas City Baseball Club, Inc. (1942), and Anderson v. Kansas City Baseball Club, Corp. (1950), in which spectators were injured due to baseballs leaving the field of play, Coomer v. Kansas City Royals Baseball Corporation (2014), involved an injury alleged to have been caused by hotdog thrown by the Royals mascot (a lion named ‘Sluggerrr’) during a between-innings promotional/marketing activity. Ultimately, The Supreme Court of Missouri was tasked with reviewing Mr. Coomer’s claims that the jury instructions by the Trial Court introduced an improper consideration.
On September 8, 2009, Mr. John Coomer, along with his father, attended a Kansas City Royals’ baseball game at Kauffman stadium. Due to the rain, it has been asserted that attendance was low and there were a plethora of open seats in the stadium. The father/son duo chose to relocate from the assigned seats on their respective tickets to an area six rows behind the third-base (visitor) dugout. Following the conclusion of the bottom of the third inning, the promotional activity referred to as the “Hotdog Launch” or “Hotdog Toss” commenced. Mr. Coomer, of his own estimate, had attended a total of 175 Royals’ games, and was familiar with the practice of the Hotdog Toss; in this instance he was said to be seated 15-20 feet from Sluggerrr’s routine.
Hotdogs were dispersed into the crowd from on top of the dugout through an air gun, as well as thrown by hand, by Mr. Byron Shores, also known as his alter ego, “Sluggerrr.” Filings stated that these four-and-a-half ounce giveaways were either encased in bubble wrap or foil, depending on the method in which they were dispersed (air gun or thrown by hand, respectively). Mr. Coomer turned his attention away from Sluggerrr (to the scoreboard) at the moment a behind-the-back hotdog throw was to commence. It is alleged that Mr. Coomer was struck in the eye by a hotdog thrown by Sluggerrr, and although he neither saw a doctor nor reported his injuries to the Royals for eight days, suffered damage requiring surgery to repair a detached retina and traumatic cataract.
Mr. Coomer depicted Sluggerrr’s behavior as reckless and this deviation from an underhanded, high-arcing toss caused his eye injury. It was alleged that the injury was also due to a lack of ordinary care, training, and supervision. Unlike the inherent risk of projectiles leaving the field of play during the course of a game (i.e., batted balls/baseball bats), there is a disparity between how the plaintiffs and defendants viewed such entertainment. Sluggerrr’s act was portrayed as a customary marketing activity and a risk inherent in the game of baseball by the Royals; however Mr. Coomer contended he was injured as the result of the defendant’s negligent hotdog throw. The jury in the Trial Court returned a verdict assessing 100% fault to Mr. Coomer and 0% to the Kansas City Royals. On appeal, Mr. Coomer introduced four issues, his primary point being that the trial court erred in allowing the Royals to utilize primary implied assumption of risk as its defense. The Missouri Court of Appeals reversed the Trial Court’s judgment and the case was remanded for further proceedings and eventual review by the Supreme Court of Missouri.
Professional baseball stadiums allow for unparalleled access for the diehard or casual fan as the game is more than just about wins and losses, but about the overall entertainment experience for every spectator in attendance. Baseball no longer seems to rely solely on the on-field product to induce fans to return game-after-game; the athletic contest is a fun-filled celebration and entertainment experience for the entire family, especially at the Minor League levels. This, in turn, has placed fans closer to the action and the potential exists for injuries caused projectiles leaving the field of play. However, baseball spectators often desire the opportunity to sit in unprotected areas for any number of reasons: opportunity to ‘snag’ a souvenir, unobstructed sight lines, proximity to the on-field action, closeness to their favorite players, etc.
As projectiles are certain to leave the field in the game of baseball, and it is impossible to extract such events from the game itself, fan injuries have the potential to occur (stadiums/teams also have a duty not to increase the risks to the patrons). Defenses by baseball stadium owner/operators, teams, and/or municipalities have evolved from the assumption of risk doctrine into the limited duty (baseball) rule. The limited duty (baseball) rule declares that a duty to patrons had been met if the stadium provides a finite number of seats behind protective screening in the most dangerous area of the ballpark for as many individuals who may be reasonably expected to desire such safeguards. The issue boils down to reasonable care and state courts have had to decide what actually constitutes reasonable care. Certain state courts have examined the subject and established jurisdictional precedent regarding the limited duty rule. Matters relevant the issue also include knowledge/appreciation of baseball’s inherent risks, the duty not to increase said risks (i.e., distraction theory), whether a duty to warn of projectiles leaving the field of play exists, what constitutes a ‘normal’ ballgame, when the duty of care begins/ends, if screening is expected around the entire ballpark, and whether or not safety can or needs to be guaranteed for all patrons (the Coomer court deftly sidesteps these when/where questions and focuses on the issue at hand).
HOWEVER, the Kansas City Royals acknowledged that the Coomer case deviated from a Baseball Rule case in that the plaintiff was not injured by a projectile leaving the field of play (i.e., foul ball or baseball bat), and that hotdogs are not inherent in America’s pastime (nor are they an inherent risk as projectiles). Although baseball fans may be entertained by the diversionary, in-between innings Hotdog Toss, as well and anticipate its customary arrival, it is not inherent in baseball. Spectators are fans of baseball, not hotdogs, and the purpose of their attendance is to view a baseball game (with or without flying hotdogs). Guided largely by the decisions in Hudson (1942) [dangers inherent in game of baseball are open/obvious and spectator voluntarily assumed risks] and Anderson (1950) [spectator sitting in reserved/protected seat, but was directed to unreserved/unprotected seat by usher], the Supreme Court of Missouri has an interesting place in history as it relates to injuries sustained by spectators at baseball games. Absent from the Court’s opinion were the Missouri cases of Crane (1913) [spectator who voluntarily chose to sit in an unprotected area], Edling (1914) [spectator injured by foul ball which passed through large hole in the protective screen], and Olds (1937) [spectator, while exiting stadium while game in progress, struck in the face by a foul ball]. As intriguing as the details of the Coomer case were, the fundamental issue is the flawed jury instructions and the instructional error claimed by the plaintiff.
Questions regarding the assumption of risk doctrine are to be answered by the Court, not juries, and “The Court holds that Coomer has shown a likelihood of prejudice to justify vacating the judgment and remanding the case.” (2014, p. 33). The Trial Court introduced an improper consideration and erred in its request of the jury; whether hotdogs constituted an inherent risk in baseball spectatorship as well as the question regarding the doctrine of assumption of risk. Judge Paul C. Williams, with all concurring, opined that:
“…the Court holds 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 player baseball that Coomer assumed merely by attending a game at Kauffman Stadium. This risk 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. Sluggerrr’s tosses may — or may not — be negligent; that is a question of fact for the jury to decide” (2014, p. 33).
Regardless of the resolution of the recently remanded case, Coomer v. Kansas City Baseball Corporation (2014), risks inherent in baseball (to spectators) have been effectively defined by the Supreme Court of Missouri; these do not include flying hotdogs.
Dr. Manning is an Assistant Professor in Sport Management, in the College of Health, at The University of Southern Mississippi. He includes Risk Management, Sport Law, and Team Culture as his academic interests. For more information, please contact him at rdm7938@gmail.com.
References
Anderson v. Kansas City Baseball Club, Inc. 231 S.W.2d 170. (1950).
Coomer v. Kansas City Royals Baseball Corp. 2014 Mo. LEXIS 154 (2014).
Crane v. Kansas City Baseball & Exhibition Co. 168 Mo. App. 301; 153 S.W. 1076. (1913).
Edling v. Kansas City Baseball & Exhibition Company. 181 Mo. App. 327; 168 S.W. 908. (1914).
Edward C. v. Albuquerque Baseball Club, LLC. 148 N.M. 646; 2010 NMSC 043; 241 P.3d 1086. (2010).
Hudson v. Kansas City Baseball Club, Inc. 349 Mo. 1215; 164 S.W.2d 318. (1942).
Lowe v. California League of Prof. Baseball. 56 Cal. App. 4th 112; 65 Cal. Rptr. 2d 105. (1997).
Olds v. St. Louis National Baseball Club. 232 Mo. App. 897; 104 S.W.2d 746. (1937).
