Tuesday, August 26, 2014

Indiana Supreme Court Finds for RailCats but Declines to Adopt Baseball Rule in Fan's Foul Ball Injury Case

Gary Southshore RailCats Home Ballpark
Southshore Baseball, LLC v. Juanita DeJesus, No. 45S03-1308-CT-531 (Ind., 2014)

What Happened?

On May 23, 2009, Juanita DeJesus attended the Gary Southshore RailCat's opening day game at The U.S. Steel Steelyard in Gary, Indiana.  On this warm, clear night, the RailCats were set to battle their Northern League foes, the Fargo-Moorhead RedHawks.  Ms. DeJesus and her fiance attended the game, meeting their friend and her niece at their seats in section 111, which were just beyond the protective netting behind home plate along the first base line.  

Second baseman Carlo Cota, the second batter of the game, hit a pop-up foul ball back into the stands.  Ms. DeJesus saw Cota make contact with the ball but as she looked up to find it, the ball struck her in the face.  As a result, she sustained several fractured facial bones and was left with permanent blindness in her left eye.

Ms. DeJesus filed a lawsuit against the RailCats claiming that they "were negligent in failing to make [the] premises reasonably safe for [her], a business invitee."  Specifically, she claimed that the RailCats should have extended the netting further down the line to have protected her seat from foul balls.  She even hired an expert who opined that the netting should have protected all of the seating sections.

The RailCats countered that the netting was adequate and that plaintiff had not produced any evidence, other than the claims of their expert, that the netting was defective.  Additionally, the defendants argued that there was no evidence that plaintiff failed to appreciate the danger of foul balls entering the stands or that being struck by a foul ball was an unreasonable risk of harm.  Finally, they urged the Indiana Supreme Court to adopt the "Baseball Rule" in which the RailCats would have been absolved of liability for a foul ball injury like this because they provided screening behind home plate sufficient to meet the ordinary demand for those protected seats.

Based on these defenses, the defendants moved for summary judgment, asking the trial court to dismiss the plaintiff's case due to her inability to prove the negligence or premises liability claims.

Who Won?

Although the RailCats were not able to beat the RedHawks on that May 23rd evening, losing 3-2 in 10 innings, they ultimately prevailed in this case.

Initially, the trial court denied defendants' motion for summary judgment but allowed defendants to pursue an immediate appeal.

The Court of Appeals, however, reversed the decision of the trial court and returned the case with instructions to grant the defendants' summary judgment motion in its entirety.  They specifically adopted the majority rule that a baseball stadium operator has only the duty to screen the most dangerous areas behind home plate.

The case was thereafter accepted by the Supreme Court for review.  The Supreme Court declined to adopt the Baseball Rule but affirmed the ruling of the Court of Appeals having dismissed Ms. DeJesus' case.


The Court cited this passage from the 1911 case of Charles Carr v. State in which plaintiff had been convicted of playing baseball on Sunday, in violation of a Draconian Indiana law which prohibited "rioting, hunting, fishing, quarreling, at common labor or engaged in his usual avocation" on Sundays.  
That baseball has come to be the one great American outdoor game; that it is played during the summer season throughout the land by boy and youth and man, beginner, amateur, and professional, in country village, town, and city; that it is played out of doors in seasonable weather; that it engages the mind alike of the participant and the spectator in an entertaining way; that it trains the body to vigor and activity and to a degree the mind to alertness; that the playing of a game requires but a fraction of a half day; that it cannot be successfully played at night; that those who witness it find in it for the time a relief mentally and physically from the stress of the intense life we as a people lead - are facts known of all men, and of which the courts and Legislatures cannot be wholly ignorant.  Carr v. State, 175 Ind. 241, 93 N.E. 1071 (Ind., 1911).
Despite the inclusion of this romantic passage and an acknowledgement that over a dozen other states had adopted the Baseball Rule, the Court was not convinced that baseball was worthy of its own special rule of liability.  The Court ultimately concluded that the enactment of the Baseball Rule in Indiana was better left the judgment of the legislature, recognizing that Arizona, Colorado, Illinois and New Jersey had codified the Baseball Rule.

With regard to the premises liability claims, the Court held that the warnings regarding the potential danger of foul balls printed on the tickets, posted on signs and announced over the public address system were adequate such that the RailCats would have had no reason to believe that DeJesus "would not realize the danger or that she would not protect herself against it."  

As to the negligence claims made by plaintiff, the Court found that plaintiff was unable to establish that she had relied on the netting to protect her from the danger presented by foul balls.  Specifically, she had testified in her deposition that she had seen foul balls enter the stands before at RailCats games and even admitted that she knew that a foul ball could come her way while she was sitting in her seat that day.   

Thursday, August 21, 2014

Toronto Blue Jays Oppose Creighton University Trademark Application

Rogers Blue Jays Baseball Partnership v. Creighton University, In re Application Serial No. 86067719

The Toronto Blue Jays have filed a Notice of Opposition with the U.S. Trademark Trial and Appeal Board in an effort to prevent the approval of trademark protection for the new logo being offered on sports apparel by Omaha's Creighton University.  Creighton has filed for trademark protection for a stylized blue jay head design to be used on "Athletic apparel, namely, shirts, pants, jackets, footwear, hats and caps, [and] athletic uniforms."  This is the Creighton logo, from a t-shirt currently available on their athletic department web site.

For their part, the Toronto Blue Jays have claimed that the team has continually used very similar logo designs from well before the Creighton application date of September 18, 2013 as shown here:

As a result of the alleged similarity, the Toronto Blue Jays claim Creighton has caused confusion and deceived the public that the Creighton goods were approved or endorsed by Toronto's Major League Baseball team.  They further claim to be damaged by causing a likelihood of dilution "by blurring the distinctive quality" of the Toronto marks.  The Toronto Blue Jays request that the Creighton application be denied.

The basic analysis of trademark infringement is the "likelihood of confusion."  Accordingly, the Toronto Blue Jays do not need to show actual confusion.  The specific inquiries that the Trademark Trial and Appeal Board will make include: the similarity of the marks with respect to appearance and impression, the similarity of the goods or services, the similarity of "trade channels", the strength of the competing marks, actual confusion, length of time of concurrent use without actual confusion and the variety of goods with which each of the marks is used.  In re E.I. DuPont DeNemours & Co. (1973).    

The decision of the board will be posted after it has been issued.  What do you think is going to happen?

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
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.


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.