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Vol. 3, Iss. 11
July 16, 2014

 


The Shot Dog Heard ‘Round The World:
Missouri High Court Finally Rules In Sluggerrr
(The Kansas City Royals Mascot) Case



   
Sluggerrr studies the court's decision in Coomer v. Kansas City Royals

The litigation saga of Kansas City Royals mascot Sluggerr, an adorable furry lion, captivated me. Sluggerrr tossed a hotdog into the stands, hit a fan in the eye and caused serious injuries.

I love litigation with odd facts and I have long-been a student of litigation involving the interaction of fans and sporting events. If you read Coverage Opinions with any regularity you’ve seen several examples of this. For these reasons, the Sluggerrr case is one of my all time favorites. I was thrilled to be quoted in the Associated Press story about the Missouri Supreme Court’s recent decision in Sluggerrr.

Sluggerrr’s problems all started at a September 2009 Kansas City Royals game when he threw, behind his back no less, a four ounce foil wrapped hotdog into the stands. This was done as part of Sluggerrr’s “Hotdog Launch,” a feature of every Royals home game since 2000. Between innings Sluggerrr stands on the roof of the visitor’s dugout and uses an air gun to shoot hotdogs to fans seated beyond hand-tossing range. When his assistants are reloading the air gun, Sluggerrr tosses hotdogs by hand to the fans seated nearby.

On this day one of the wiener’s that had been tossed by Sluggerrr hit fan John Coomer. Coomer testified that he saw Sluggerrr turn away from the crowd as if to prepare for a behind-the-back throw. But, unfortunately for Coomer, he chose that moment to turn and look at the scoreboard. He never saw Sluggerrr throw the hotdog. A “split second later ... something hit [him] in the face,” and he described the blow as “pretty forceful.” Coomer suffered a detached retina and needed eye surgeries. Of course litigation ensured.

For his negligence count Coomer alleged that the Royals “(through its employee, Sluggerrr) failed to exercise ordinary care in throwing hotdogs into the stands, that the team failed to adequately train Sluggerrr on how to throw hotdogs into the stand safely, and that the team failed to adequately supervise Sluggerrr’s hotdog toss.” [It’s amazing that the Royals allegedly couldn’t train Sluggerrr how to throw hotdogs into the stands safely, but could apparently train a massive carnivore not to eat the hot dogs.]

In general terms, here’s the issue at the heart of Sluggerrr’s case. Fans seeking damages for injuries sustained by a foul ball have a very difficult time recovering from the stadium operator. The majority of courts that have confronted the question have adopted the so-called “Baseball Rule,” which limits the duty owed by baseball stadium operators to spectators injured by foul balls. The Baseball Rule generally provides that a baseball stadium operator is not liable for a foul ball injury as long as it screens the most dangerous part of the stadium and provides screened seats to as many spectators as may reasonably be expected to request them. Sluggerrr’s case raised the question whether this “baseball rule,” or “no duty rule,” should also apply to an injury caused by a mascot.

Sluggerrr was successful at trial in Missouri state court. A jury found the furry lion to be zero percent at fault and Mr. Coomer to be one hundred percent at fault. However, the Missouri Court of Appeals reversed, holding that it was error for the trial court to charge the jury on primary implied assumption of the risk when it comes to a flying hotdog. The appeals court explained: “Everyone who participates in or attends a baseball game assumes the risk of being hit by a ball, because the risk of being hit by a baseball is a risk inherent to the game. However, the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game. Consequently, a plaintiff may not be said to have consented to, and voluntarily assumed, the risk merely by attending the game.”

The case went to the Supreme Court of Missouri which held oral argument on September 11, 2013. The Phillie Phanatic filed an amicus brief supporting Sluggerrr. I’d been waiting anxiously for the Missouri high court’s decision in Sluggerrr’s case.

[Incidentally, it was stated during the Supreme Court oral argument that no court has ever applied the “no duty” rule to the activities of a mascot. This is not so clear. In 2004, in Kohri v. The Phillies, a Pennsylvania trial court held that the “no duty” rule applied to an injury that was allegedly caused by the antics of the Phillie Phanatic.  The case was affirmed by the Pa. Superior Court and the Pa. Supreme Court declined to hear an appeal.] 

The Missouri Supreme Court’s decision in Sluggerrr finally came on June 24. The court issued a 36-page unanimous decision. A good chunk of the decision is devoted to how Missouri law treats the “century-old” affirmative defense of assumption of the risk. Putting aside many pages of analysis, the court held as follows:

“[I]f Coomer was injured by a risk that is an inherent part of watching the Royals play baseball, the team had no duty to protect him and cannot be liable for his injuries. But, if Coomer’s injury resulted from a risk that is not an inherent part of watching baseball in person—or if the negligence of the Royals altered or increased one of these inherent risks and caused Coomer’s injury—the jury is entitled to hold the Royals liable for such negligence and, to the extent the reasonableness of Coomer’s actions are in dispute, the jury must apportion fault between the parties using comparative fault principles.”

With that standard now set the Missouri Supreme Court turned to address whether being injured by Sluggerrr’s hot dog toss is an “inherent risk” of watching a Royal’s home game. To do so the court addressed whether such risk is “structural” and “involved in the constitution or essential character” of watching such game.

The court concluded that it is not: “The rationale for barring recovery for injuries from risks that are inherent in watching a particular sport under implied primary assumption of the risk is that the defendant team owner cannot remove such risks without materially altering either the sport that the spectators come to see or the spectator’s enjoyment of it. No such argument applies to Sluggerrr’s hotdog toss. Millions of fans have watched the Royals (and its forebears in professional baseball) play the National Pastime for the better part of a century before Sluggerrr began tossing hotdogs, and millions more people watch professional baseball every year in stadiums all across this country without the benefit of such antics.

Some fans may find Sluggerrr’s hotdog toss fun to watch between innings, and some fans may even have come to expect it, but this does not make the risk of injury from Sluggerrr’s hotdog toss an ‘inherent risk’ of watching a Royals game. As noted above, ‘inherent’ means ‘structural or involved in the constitution or essential character of something: belonging by nature or settled habit,’ Webster's Third New International Dictionary (1966), at 1163 (emphasis added (by court)). There is nothing about the risk of injury from Sluggerrr’s hotdog toss that is ‘structural’ or involves the ‘constitution or essential character’ of watching a Royals game at Kauffman Stadium.”

Please indulge me one more long quote to describe the court’s decision: “[T]he 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 play 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. But the Royals owe the same duty of reasonable care when distributing hotdogs or other promotional materials that it owes to their 1.7 million fans in all other circumstances, excepting only those risks of injury that are an inherent part of watching a baseball game in person.”

I was very surprised by the Coomer decision.  The court’s decision, that the antics of a mascot are not an inherent part of watching a sporting event, because they are not part of the “constitution or essential character” of what’s taking place on the field, misses the point. I agree with the Royals when they say that, while the hotdog toss, admittedly, has nothing to do with what’s going on inside the diamond, it is a part of the overall stadium “experience.”

Let’s face it. Baseball is as much a business as it is a sport. The Royals need to sell tickets or else there will be no “constitution or essential character” of anything going on in Kauffman stadium. Mascots are part of a team’s effort to sell tickets. My eight year old daughter wants to go to a Phillies game for only one reason – the see The Phillie Phanatic. The breaks between innings, and fan disinterest when a game has ceased to be competitive, are also an inherent part of the game.  The use of mascot antics to address these very situations makes the mascot a direct extension of the game itself. Indeed, at minor league games, the many (sometimes crazy) things happening off the field might just be the “constitution or essential character” of the game.      
    
Coomer, being a lengthy, tremendously detailed and unanimous opinion, from a supreme court, is now surely the go-to case for all other courts nationally, to consider for guidance, when confronted with a mascot injury case.  This is the Marbury v. Madison of mascot injury cases. Will this decision cause teams to rethink some of their mascot promotions and antics or take additional measures to keep spectators safe? I doubt it. What happened to Mr. Coomer can be chalked up as a freak accident.

Thus, the biggest take-away from Sluggerrr is not so much a test for assumption of the risk vis-à-vis mascot injuries -- but that the test can have wider application. Assumption of the risk clearly applies to any injury caused by a foul ball or flying bat. But for a court looking to Coomer for guidance, for other game-related injuries, the question will be whether it arose out of the “constitution or essential character” of the game. Based on the narrow interpretation of this by the Coomer court, assumption of the risk will often strike out as a defense.

 
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