Tuesday, July 29, 2014

The Supreme Court of Missouri Declares that Getting Hit by a Hot Dog is Not an Inherent Risk of Attending a Royals Baseball Game


Coomer v. Kansas City Royals Baseball Corp., SC93214 (Mo., 2014)
Coomer v. Kansas City Royals Baseball Corp., WD73984, WD74040 (Mo. App. 2013)
Circuit Court of Jackson County, Missouri, 1016-CV04073

What happened?

The Royals mascot, Sluggerrr, is a large lion played by John Byron Shores.  Since 2000, Shores has been famous for launching hotdogs into the crowd from an air cannon and tossing them by hand in entertaining ways, including over his shoulder and behind his back. 

On September 8, 2009, John Coomer attended the Kansas City Royals and Detroit Tigers game at Kauffman Stadium with his father.  Instead of sitting in their ticketed seats, Mr. Coomer and his father found seats approximately six rows behind the dugout on the third base side. 

Mr. Shores performed the “Hotdog Launch” promotion between the third and fourth innings of this game and after finishing with the air gun, began manually tossing foil-wrapped hotdogs into the stands from his position atop the third base dugout.    

Mr. Shores attempted to throw a hotdog behind his back in the direction of Mr. Coomer, just as Mr. Coomer turned to look at the scoreboard.  The hotdog reportedly hit Mr. Coomer in the face with enough force to knock off his hat, but he did not report the incident to the Royals at that time.  He also attended the game the next day and noticed no issues with his vision.

Two days after the occurrence, Mr. Coomer first began to notice vision problems.  He was ultimately diagnosed with a detached retina and cataracts in his eye - allegedly as a result of the errant toss.  He underwent two surgeries and claimed a permanent vision loss in the eye, despite an artificial lens implant. 

The case was tried in front of a Jackson County jury in March, 2011.  The jury deliberated and returned its verdict on March 9, 2011.

Who won?

The Royals.  The jury found that Mr. Coomer was 100% at fault for the occurrence and awarded him no damages for his injuries.  

The appeal

Plaintiff appealed judgment on the verdict claiming that the court erred in instructing the jury on the various assumption of risk defenses claimed by the Royals.  The plaintiff specifically argued that a “mascot throwing hot dogs directly at [fans] is not an inherent or unavoidable risk of the game of baseball.”

The Royals countered that Mr. Coomer, who admittedly had been to 175 previous games at Royals Stadium and had previously seen the Hotdog Launch, assumed the risk of being hit by the hotdog because the promotion was a customary part of the game and Mr. Coomer consented to the risk by attending the game.

Who won the appeal?   

Mr. Coomer. 

The appellate court noted that everyone who attends a baseball game assumes the risk of being hit by a ball because the risk is inherent to the game; however, the court agreed with the plaintiff that the trial court erred in submitting the assumption of risk defense to the jury because, “the risks created by a mascot throwing promotional items do not arise from the inherent nature of a baseball game.”

The primary assumption of risk instruction given by the trial court informed the jury that this was a complete bar to recovery.  Because the primary assumption of risk instruction should not have been given, judgment was reversed.

Supreme Court

The Royals sought to have the case appealed to the Missouri Supreme Court.  The case was accepted and oral arguments proceeded on September 11, 2013

The Supreme Court agreed with the lower court, finding that the trial court erred in allowing the jury to determine whether being injured by the hotdog toss was an inherent risk of watching a Royals home game, instead finding that the judge should have decided the issue.  Specifically and importantly, "The risk of being injured by Sluggerrr's hotdog toss...is not an unavoidable part of watching the Royals play baseball."  

The Court reiterated that the Royals likely would not have been responsible for Mr. Coomer's injury if it had been caused by a foul ball or bat leaving the field and cited with approval prior decisions supporting the "Baseball Rule" as it was applied in Missouri.  They went so far as to declare that being injured by the hotdog toss was not even an inherent risk of the hotdog toss.  

What's Next for Mr. Coomer?    


The trial court's judgment for the Royals was vacated and remanded, meaning that the results of the first trial were voided and the case was returned to the trial court for another trial or, perhaps, a potential settlement.

Tuesday, July 22, 2014

Cubs File Lawsuit Against Unofficial Mascot Billy the Cub

Chicago Cubs Baseball Club, LLC v. Weier, et al., 14-cv-05507, Northern District of Illinois

Photograph of Billy the Cub, from Exhibit D of the Complaint

If you have been to Wrigley Field in the past several years, you may have encountered one of several large bears donning a Cubs helmet and wearing a #78 jersey wandering around outside the park and posing for pictures. Not to be confused with the Cubs new official mascot, Clark, Billy the Cub is actually a for-profit venture that has no affiliation with the team.

Clark, the Cubs official mascot introduced in 2014
Although the owner of the costumes has reportedly been rebuffed by the Cubs in his efforts to become the sanctioned mascot and has been the subject of cease and desist requests, the Billy the Cub costumers are still seen seeking tips around the neighborhood on game days. The Cubs have finally had enough, however, and it was likely this video showing the man inside the costume getting in a fistfight that was the tipping point in the Cubs initiating legal action.


Not surprisingly, the Cubs do not want to be associated with with these unsanctioned "mascots" and they allege in their complaint that the defendants "interact with Cubs fans by posing for photos or videos with the fans and engaging in other mascot-like activities (such as dancing with fans), and then seek to hustle those same fans for 'fees' or 'tips."  In addition to the explicit reference to the bar fight depicted in the YouTube video shown above, the Cubs further allege that the defendants have made profane and derogatory remarks to fans, including racial slurs, often in relation to the amount of the tip.

The Cubs specifically complain of trademark infringement, trademark dilution and violations of the Illinois Uniform Deceptive Trade Practices Act.  As for damages, they seek the permanent injunction of further Billy the Cub activities, a disgorgement of all profits, the delivery of costumes for destruction, punitive damages and attorneys fees.

The Lanham Act states in pertinent part:
(a) (1) Any person who, on or in connection with any goods or services,...uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation,
connection, or association of such person with another person
, or as to the origin,
sponsorship, or approval of his or her goods, services, or commercial activities by another
person...
shall be liable in a civil action by any person who believes that he or she is or is likely to be
damaged by such act.  §43 (15 U.S.C. §1125).
It appears that the Cubs are on good legal footing here and at the very least, the threat of having to reimburse the Cubs for their legal fees would seem to be a pretty strong incentive for the defendants to discontinue their Billy the Cub operations, even if they have insurance coverage that will provide them with a defense.

It will be interesting to see if they have as much fight in them in the defense of this lawsuit as was seen at the bar.  

Tuesday, February 11, 2014

Albert Pujols Drops PED Allegation Lawsuit Against Jack Clark

Albert Pujols has reportedly agreed to dismiss the 2013 defamation lawsuit he filed against former slugger Jack Clark in advance of a hearing on Clark's motion to dismiss scheduled for February 20, 2014.  Terms of the settlement, if any, have not been disclosed. 

Jack Clark has issued the following statement:
"I would like to address Albert Pujols' pending defamation lawsuit and re-confirm that I have no knowledge whatsoever that Mr. Pujols has ever used illegal or banned PEDs. I publicly retract my statements that Albert Pujols used such substances. During a heated discussion on air, I misspoke and for that I sincerely apologize."
And Pujols has responded, "I have accepted Jack Clark's retraction and apology to resolve my lawsuit against him and clear my name."





Monday, December 23, 2013

Lawyer Tony LaRussa Inducted into the Baseball Hall of Fame

Most people know Tony LaRussa as a Major League manager.  It is also widely known that he got his law degree, anticipating that his life in baseball was to be short-lived. 

What is not as well-known is Tony LaRussa, the Chicago Cub.  LaRussa made his major league debut as an 18 year old in 1963 with the then Kansas City Athletics.  He played second base and hit .250 in 53 plate appearances.  He showed a keen eye and posted an on base percentage nearly one hundred points higher at .346.  It took LaRussa another four seasons, however, to work his way back to the major league club, appearing in 13 games for the Oakland Athletics from 1968-1969. 

In 1970, Tony LaRussa was able to crack the lineup more regularly, appearing in 52 games and hitting .198 in 123 plate appearances.  He again showed a good eye, posting an on base percentage over one hundred points higher at .301.  After going hitless in 8 at bats for the 1971 A’s, LaRussa’s contract was purchased by Atlanta, where he hit a robust .286 and had a sparkling .375 on base average in 8 plate appearances with the Braves.  

LaRussa played in the Braves’ system in 1972 but did not make an appearance with the big club in Atlanta that season.  On October 20, 1972 the Braves traded him to the Chicago Cubs in exchange for right-handed pitcher Tom Phoebus, who had gone 3-3 with 6 saves and a 3.78 ERA in 37 appearances with the Cubs.

In 1973, LaRussa made the team out of spring training and was on the bench for the April 6th contest as the Expos faced the Cubs in front of 40,273 at Wrigley Field.  The Expos struck first, scoring 2 runs off of Fergie Jenkins in the top of the 1st inning.  The Cubs scored a run in the bottom of the 1st off of Mike Torrez and the score remained 2-1 as the Cubs came to bat in the bottom of the 9th. 

Cubs first baseman Joe Pepitone led off the inning with a single to centerfield, despite a five-man infield, and Cleo James was called to run for him.  Ron Santo then reached on an error on a ball hit to Expos second baseman Ron Hunt.  Cubs manager Whitey Lockman turned to LaRussa and pointed a finger in his direction.  “Run for Santo” was all he said.  Tony LaRussa grabbed his helmet and trotted out to first base to spell Santo.

Glenn Beckert drew a base on balls and the Cubs were in business with the bases loaded and nobody out.  Randy Hundley walked and Jones scored to tie the game at 2-2.  But Don Kessinger promptly fouled out and Jim Hickman followed with a strikeout. 

The Cubs were down to their final out and Rick Monday came to the plate, hoping to break the tie and avoid extra innings.  Tony LaRussa danced off of third.  Monday worked the count against fireballer Mike Marshall and eventually coaxed a walk!  LaRussa jogged home and triumphantly stomped on home plate, having scored the winning run in his Cubs debut.

And there you have the entirety of Tony LaRussa’s career with the Cubs.  He never appeared in another major league game for the Cubs after he scored the winning run on Opening Day, 1973.  LaRussa was sent down to the Cubs’ AA affiliate in Wichita and put together a nice season, hitting .314/.403./.393 with 5 home runs and 75 RBIs in 106 games for the Aeros.

After another four seasons in the minors, LaRussa retired as a player at the end of the 1977 season, never having reached the major leagues again.  The very next year, he was hired to manage the White Sox AA team in Knoxville.  By August, 1979 he was called upon to manage the Chicago White Sox when his 1973 Cubs teammate Don Kessinger resigned from the post. 

LaRussa managed consecutively in the major leagues through his retirement in 2011.  He is just one of four men listed on the Cubs all-time roster as a pinch runner and only one of two, the other being Mel Kerr, to have scored a run in his only pinch running appearance.

He finished his managerial career third on the all-time list with 2851 wins and led the 1989 A’s and 2006 and 2011 Cardinals to World Series titles.  He is now a Hall of Famer, inducted with fellow managers Bobby Cox and Joe Torre

Sunday, December 15, 2013

Comedian Danny Thomas’ Investment Group Fails in Bid to Buy Chicago White Sox

Epton v. CBC Corp., 48 Ill.App.2d 274, 197 N.E.2d 727 (Ill. App. 1 Dist., 1964)

What happened?
 

In early April 1961, the investment group with a controlling interest in the Chicago White Sox offered to sell its share to a consortium organized by Chicago attorney Bernard Epton that included well-known comedian Danny Thomas. The agreed upon sale price was $4.8 million (about $37.5 million today.)

The White Sox stock, comprising a 54% share, was owned by CBC Corporation, controlled by Bill Veeck, Hall of Famer Hank Greenberg and Arthur Allyn, Jr. The group had purchased this share on March 10, 1959 from White Sox founder Charles Comiskey’s daughter, Dorothy, for $2.7 million (about $21.8 million today.)

Upon the sale to CBC, the White Sox enjoyed immediate success and captured the 1959 American League pennant. After falling to the Los Angeles Dodgers in the World Series; however, the White Sox finished 10 games back in 1960. By early 1961, the Bill Veeck group saw an opportunity to make a quick, handsome profit and agreed to sell their 54% interest in the American Baseball League Club of Chicago to the Danny Thomas group.

On May 31, 1961, a handshake deal was made with the Thomas group having a one-week option for $1000 to purchase the shares of stock for the agreed upon price. At the conclusion of this meeting, Veeck reportedly told Epton, "O.K., Bernie, *** we have a deal. I am glad that it’s taken care of. I know you will do a good job." Greenburg and Allyn are also alleged to have shaken hands with Epton and congratulated him on the deal. The written option agreement had not been signed, however.


As agreed, plaintiff delivered the check for $1000 to the seller’s attorney on the morning of June 2, 1961. That afternoon, however, Epton visited Allyn’s office and was told that Greenberg was being difficult. Allyn assured Epton that they would get the option agreement signed so that the sale could be formally announced on June 5, 1961. For unknown reasons, however, Hank Greenberg was having second thoughts.

On June 3, 1961, Epton offered a certified check in the amount of $100,000 to show their group’s good faith and ability to perform. Veeck refused the check, telling Epton that it was not necessary.
Bernard Epton with Certified Check
On June 5, 1961, CBC returned the $1000 check that they had accepted but not deposited, informing the Thomas group that Greenberg was not willing to sign the option agreement and that the CBC group was not going to be able to sell the stock to them.

As a result of the deal having fallen through, Epton filed suit seeking that the court compel CBC to sell them the team under the terms of the option agreement or alternatively, award them damages in the amount of $700,000 (about $5.47 million today), claiming that the stock they agreed to purchase for $4.8 million was actually worth $5.5 million.

The option agreement at issue provided that the Thomas group was to give written notice of their intent to exercise the purchase option and deliver a check in the amount of $99,000 to CBC. The Thomas group had not done either but claimed that their oral notice was sufficient and that they had substantially complied by offering the $100,000 check that Bill Veeck said was not necessary.

So who won?

The court ruled in favor of the CBC group, refusing to force the sale or award any monetary damages to the Thomas group.

Why?

The court found that even though Epton was on notice that Greenberg was refusing to go along with the option, "plaintiff still did not give written notice or pay the required $99,000; rather, he insisted that defendants sign the option agreement, thereby evidencing his uncertainty as to whether there was in fact any binding agreement." Accordingly, the court affirmed the lower court’s dismissal of Epton’s lawsuit.

What happened after this lawsuit was decided?
 
Interestingly, the stock owned by Veeck and Greenberg was sold to Arthur Allyn, Jr. and his brother, John Allyn and they owned the team together until John bought out Arthur in 1969. In 1975 John Allyn sold the team back to Bill Veeck.

Bernard Epton served in the Illinois House of Representatives from 1969 through 1983. He was unsuccessful in his 1983 bid for mayor of Chicago, losing a close race to Harold Washington.

Danny Thomas founded the St. Jude Children's Research Hospital in 1962.  It may never be known if the White Sox deal falling through sped up his efforts to bring the children's hospital to fruition, but Danny Thomas' vision has certainly been responsible for saving the lives of thousands of children since its inception. 

Saturday, December 14, 2013

Over Fifty Years Before Jackie Robinson Broke Major League Baseball’s Color Barrier, an Integrated Minor League Team Battled for the Rights to Future Hall of Fame Black Ballplayer Frank Grant

Harrisburg Base-Ball Club v. Athletic Association, 1890 WL 2997, Pa.Com.Pl. (1890)

Who was Frank Grant?
The plaintiff in this case, better known as the Cuban Giants, was admitted to Eastern Interstate League as the representative from York, Pennsylvania and played as the Monarchs.  The manager of the defendant Harrisburg Ponies, James Farrington, was none too pleased that the talented Giants were welcomed into the league and countered by luring second baseman Frank Grant and catcher Clarence Williams to sign on with the Ponies, despite the fact that each had already signed contracts to play for the Giants/Monarchs for the 1890 season.
Grant was held in such high regard that he received a hero’s welcome in Harrisburg and was nicknamed “The Colored Dunlap” (an obviously insensitive moniker nowadays) due to his favorable comparisons to white second baseman Fred Dunlap.
According to the Harrisburg Morning Patriot, Grant was the “most famous colored ballplayer in the business” and “when he appeared on the field a great shout went up from the immense crowd to receive him, in recognition of which he politely raised his cap.”
What was the basis for the lawsuit?
The Giants claimed that the loss of Grant, one of their “most expert players” would cause irreparable harm to their profitability.  Moreover, the Giants claimed that they had expended great sums of money to erect “buildings, fences and accommodations for the public” with the expectation that Grant, “a player of great reputation,” would draw a substantially larger paid attendance.  They asked the court to issue an injunction to prevent Grant from playing for the Harrisburg Ponies in 1890.  Importantly, however, the Giants could not ask the court to compel Grant to play for them in 1890 because such a remedy was not available at law.
So who won?
The court ruled in favor of the Ponies and Frank Grant was allowed to play the 1890 season for Harrisburg.
Why?
The court found that because they did not have the power to force Grant to play for the Giants in 1890, Grant’s playing for the Ponies was not the direct cause of the damages to the Giants.  In other words, the Harrisburg Ponies were not at fault because the Giants would have sustained the same claimed losses even if Grant had played a team other than the ponies.
Additionally, the court found that Grant’s contract with the Giants was not fully enforceable because it lacked mutuality, in that only the Giants had the right to compel specific performance.  The provision that the court singled out gave the club the right to cancel the contract “at any time” if it appeared that Grant was “not fulfilling his agreements to the best of his ability.”
What happened after the case was decided?
Grant enjoyed a productive season for the Ponies during their time in the Eastern Interstate League, hitting .333, slugging .488 and stealing 22 bases in 59 games.  In the middle of July, an opportunity arose for the Ponies to join a higher minor league when the Jersey City Jerseys of the Atlantic Association folded. 

The problem for the Ponies was that the American Association did not have any black players.  Teams such as the Washington Senators and Baltimore Orioles initially refused to play the Ponies if Grant was in the lineup.  Regardless, Harrisburg was admitted and took over Jersey City’s record. 
Despite the prejudice Grant faced on and off the field, he hit .332 with 13 doubles in 47 American Association games with the Ponies.  In 2006, Frank Grant was inducted into the Hall of Fame by the Negro League Committee.

Tuesday, December 10, 2013

James E. Bennett - Inventor of Baseball's Most Ridiculous Patented Equipment

What is a patent?

Long ago, governments recognized that protecting inventors’ efforts was essential to encourage technological advancement but realized that limiting the time in which an inventor had the exclusive right to market their invention served the greater good by preventing the inventor from controlling a useful product forever.  Patents were first granted in Europe in the late 1400s and the patent system was first enacted in the United States in 1790.  To date, there have been thousands baseball-related patents issued covering everything from game equipment to methods of compressing game broadcasts. 

In the United States, a patent is an intellectual property right granted by the government to an inventor that “excludes others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.  Currently, a utility patent is enforceable for 20 years from the date on which the application was submitted, assuming that periodic maintenance fees are paid as scheduled.

What can be patented?

A utility patent will be granted for a machine, process, article of manufacture, composition of matter (or any improvement to an existing machine, process, article of manufacture, composition of matter) as long as it is “new, nonobvious and useful.”  There are certain things that cannot be patented, however, such as laws of nature, abstract ideas and inventions that are morally offensive or “not useful.”

The “non useful” component is somewhat interesting in that the patent examiner is charged only with making a decision whether an invention will function as expected and otherwise has a “useful purpose.”  As you will see below, “useful” does not always mean that the invention will be marketable.

So how did James Bennett hope to change baseball?

While it is not clear whether inventor James E. Bennett of Momence, Illinois is the same James Bennett who played for the Sharon Ironmongers in the 1895 Iron and Oil League, it seems clear that he did not exert any forethought as to whether his inventions would be practical when used under baseball game conditions.  Either that or he just really hated catching a ball with the existing baseball glove technology available at the turn of the 20th Century. 

By the early 1900s, baseball gloves had undergone constant improvement.  Starting with George Rawlings in 1885, (Pat. No. 325,968) protective gloves were becoming more acceptable to protect fielders’ hands.  In 1891, Harry Decker added a thick pad to the front of the glove (Pat. No. 450,355) and Bob Reach added an inflatable chamber (Pat. No. 450,717).  By 1895 Elroy Rogers had designed the classic “pillow-style” catcher’s mitt (Pat. No. 528,343) that would be used with little change until Randy Hundley pioneered the one-handed catching technique in the 1960s using a hinged catcher’s mitt.  

Regardless of the existence of the baseball glove technology in use at the time, James Bennett tried to think outside the box by eliminating the catcher’s mitt all together and, instead, attaching that box to the catcher.  Here is 1904’s "Base Ball Catcher" in all of its ill-conceived glory:

Front View
Side View
Bennett apparently envisioned the catcher squatting behind home plate acting as a passive target for the pitcher’s offerings and designed this contraption to accept the pitched ball into the cage such that it would strike the padding and drop through a chute into the catcher’s hand so it could be returned to the mound.  As you can see, however, the device would have significant shortcomings should the catcher have to attempt to throw out a would-be base stealer, be required to catch the ball for a play at the plate, attempt to block a wild pitch or especially to field his position on a ball put in play in front of the plate.   
  
But Bennett was not finished yet! In 1905, he patented a two-handed "Base Ball Glove" with an oversized pocket to trap the ball:

Front and Back View
Bennett claims that this poorly imagined glove is easy to use because the fingers on the player’s throwing hand were specially designed to “permit the easy and quick removal of that hand to grasp and throw the ball.”  Just as with the "Base Ball Catcher," however, this design does not offer the player much in the way of a catching radius.   

So what happened to James E. Bennett’s inventions?

As of 1918, he was still looking for investors, according to this advertisement he placed in the August and October issues of “Forest and Stream” magazine.