Thursday, September 10, 2015

Man Shown Napping on ESPN’s “Sunday Night Baseball” Broadcast has $10 Million Lawsuit Thrown Out by Judge

Andrew Robert Rector v. Major League Baseball Advanced Media, ESPN New York, et al.
Supreme Court of the State of New York, County of The Bronx, No. 303630 (2014)


What Happened?

Andrew Robert Rector attended the April 13, 2014 game between the Red Sox and Yankees at Yankee Stadium.  In the top of the fourth inning, Rector was shown on the “Sunday Night Baseball” telecast while Dan Shulman and John Kruk quipped about the fact that he appeared to be sleeping. 

In his complaint, Rector alleged that the comments made by Schulman and Kruk amounted to an “unending verbal crusade against the napping plaintiff.”  Specifically, Rector claimed that the broadcast team used the words “stupor,” “fatty,” “unintelligent” and “stupid” in describing him.  He further asserted they falsely claimed, among other things, that Rector was a “fatty cow that needed two seats at all time[s] and represent (sic) symbol of failure” and “a confused disgusted (sic) and socially bankrupt individual.”

Rector was further angered that the scene was later posted to and YouTube by Major League Baseball Advanced Media under the title, “Tired Fan Naps in the Stands.”

As a result, Rector brought a lawsuit against Major League Baseball Advanced Media, ESPN New York, the New York Yankees, Dan Shulman and John Kruk seeking $10 million in damages for defamation of character and intentional infliction of emotional distress claiming he suffered mental anguish, loss of future income and loss of earning capacity as a result of the occurrence.  He even went so far as to claim that “insurance companies now consider me a high risk.”

The commentary by Shulman and Kruk that pertained to Rector was made during a span of less than 90 seconds in which plaintiff was on camera for a total of 31 seconds. 

The actual exchange between Shulman and Kruk follows:  
Shulman: This guy’s oblivious to how good it is.  Join the millions of subscribers, maybe even this guy.  Watch every out of market game live in true HD on over 400 devices.  Visit for details.

Kruk:   Sometimes you have to turn it off, get some sleep.  This is not the place you come to sleep.  Tell you what though, how comfortable it that?  Probably won’t have any neck problems tomorrow.

Shulman:  I mean, is that guy to his left his buddy, who’s just letting him sleep, or is he here alone?  What’s the deal with this guy?

Kruk:  Maybe that’s his buddy and he likes him a lot better when he’s asleep.

Shulman:  I think the other guy’s really more concerned with the food and the game.

Kruk:  Chicken fingers are a special item at the ballpark.  Why share?  Get ‘em while he’s asleep so he won’t ask for one.

Shulman:  We gotta see how long this guy’s out for.

Kruk:  You don’t think he can sleep, it’s only the fourth inning, you don’t think he can sleep through?

Shulman:  Did he sleep through the [Carlos] Beltran homer?  I mean 45,000 people stand up and cheer and he sleeps through.

Kruk:  You think it’d be tough to, but he seemed comfortable.  It didn’t look like he just started to sleep.

Shulman:  Not a cousin, not a relative?

Kruk:  No, I don’t think so, but you never know.  I mean, I didn’t get a good look at him cause of the head tilt. But I mean physically he could be, yeah.

As you can see, this portion of the broadcast did not appear to support Rector’s allegations.

In response, the defendants filed a motion to dismiss, asking the court to toss the case because plaintiff had not properly stated a cause of action.  The defendants attached a copy of the entire broadcast as an exhibit to the motion and argued that literally none of the allegations made by plaintiff were contained in any exchange between Shulman and Kruk for the entirely of the telecast.  Furthermore, the defense claimed that any comments made about Rector were “loose, figurative or hyperbolic statements” and otherwise harmless.

Who Won?

The defendants prevailed.  In her opinion issued on August 17, 2015, Judge Julia I. Rodriguez granted the defendants’ motions and dismissed the case in its entirety. 


The court found that the recording of the telecast conclusively established “that none of the defendants made any of the statements attributed to them in the complaint.”  Additionally, the court held that the statements made by Shulman and Kruk were not defamatory or actionable. 

As to the intentional infliction of emotional distress claims, plaintiff had to prove that defendants’ conduct was “so outrageous of character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”  Not surprisingly, the court held that nothing attributed to the defendants rose to the level of extreme and outrageous conduct.

As a result, plaintiff’s entire case was dismissed as to all defendants.        

Tuesday, September 9, 2014

Jose Offerman Ordered to Pay $940,000 to Catcher John Nathans for On-Field Assault with Bat

Matt Beech (L), Jose Offerman (M), Johnathan Nathan (R)  Photo credit: Christian Abraham
Nathans v. Offerman, 3:09-cv-00256-WWE, 922 F.Supp.2d 271, (D. Conn., 2013)

What happened?

Jose Offerman was an infielder who played for 15 years in the Major Leagues, last playing for the Mets in 2005.  At his peak, Offerman signed a free agent deal with the Red Sox in 1998 that paid him $26 million over 4 years.  Although Offerman was an All-Star in 1999, his offensive production started to wane in 2000 and he was eventually traded away near the end of the Boston contract.  By 2006, Offerman was playing for the Mets' AAA affiliate in Norfolk and, after hitting  just .238 in 97 games, was granted free agency at the conclusion of the season.  

Unable to find a Major League job for the 2007 season, he signed on to play for the Long Island Ducks in the independent Atlantic League, joining a team that included Pete Rose, Jr. and former Major League All-Stars Carl Everett and Edgardo Alfonso.  Offerman enjoyed a resurgent season feasting on minor league pitching, posting a .335/.425/.502 line with 8 home runs through 69 games.  

On August 14, 2007, Offerman was in the lead-off spot for the Ducks, who were visiting the Bridgeport Bluefish of Connecticut.  Offerman promptly hit Matt Beech's first pitch of the game over the wall for a home run.  Offerman then came to the plate again in the second inning.  After a swinging strike, Beech's next pitch plunked Offerman on his left calf.  Instead of taking first base, however, Offerman charged the mound with his bat in hand.

As Beech stood his ground, Bluefish catcher Johnathan Nathans chased Offerman towards the middle of the infield and was allegedly struck in the head by Offerman's bat.  Offerman was ejected from the game and arrested later that night on two counts of Assault in the Second Degree.  He was suspended by the league and never played for the Ducks again.  Offerman was placed on two years probation and the criminal charges were ultimately dismissed. 

Nathans, who had played as high as AA ball in the Red Sox organization several years earlier, tried to stay in the game but was ultimately removed from the game and taken for medical care.

In his lawsuit, Nathans claimed that Offerman and the Long Island Ducks were guilty of (1) assault and battery, (2) negligence, and (3) reckless assault and battery.  Nathans alleged a number of resulting injuries from the attack, including a concussion, post-concussion syndrome, vertigo, headaches, vestibular dysfunction, inner ear damage and post traumatic stress disorder, among others.
Motion for Summary Judgment

The Ducks filed a motion for summary judgment asking that the court dismiss them as a defendant because Offerman's conduct was outside of the scope and course of his employment with the team; Offerman could not be held responsible for the injuries because Nathans was a co-participant in a contact sport; and, that even if held liable for the acts of Offerman, the Ducks could not be held responsible for punitive damages.

With regard to the assertion that Offerman was not within the course and scope of his employment, the court denied the motion, holding that "[a] master does not escape liability merely because his servant loses his temper while he is conducting his master's business."  The court believed it was "not unexpected for a batter to charge the mound after being hit by a pitch."  While it was "unusual" for the batter to bring along the bat, but not unprecedented, this act was not such a clear-cut digression from his work duties that the court could dismiss the case.  They felt it was a better question for the jury to answer.

As to the co-participant theory, the court granted the motion as to the negligence counts because mere negligence was not enough under Connecticut law to create liability between co-participants in a team contact sport.  However, liability could be lie with reckless or intentional conduct; therefore, the motion was denied as to the assault and battery counts.

Finally, the court found that the Ducks could not be found responsible for any punitive damages assessed on the part of their employee Offerman.

Who won?

Johnathan Nathans.

This case proceeded to trial and the jury was tasked with determining whether Johnathan Nathans had proven that Jose Offerman committed an assault and/or committed a battery upon which damages could be awarded to Nathans.  Additionally, the jury was asked whether Offerman's conduct was committed within the course and scope of his employment with the ball club.

Ultimately, the jury found that Offerman had assaulted Nathans but that Nathans had not proven a battery.  They awarded Nathans a total of $940,000 in damages.

The jury additionally found that Offerman was not acting in the course and scope of his employment at the time of the occurrence and in doing so, exonerated the Long Island Ducks of any wrongdoing.

Amended judgment
What's next?

Both Nathans and Offerman have filed post-trial motions asking the court for a new trial.

Nathans believes the jury incorrectly found that Offerman was not in the course of his employment at the time of the incident and that the trial court failed to give the jury proper instructions on the agency relationship.

Offerman asks for a new trial due to the inconsistencies in the jury's findings and verdict.  He argues that because he was not found to be responsible for the battery, which requires actual physical contact, he should not be responsible for damages that clearly had to have resulted from being struck by the bat.  [Being found responsible for the assault would only require that Nathans was put in a reasonable fear of harm from an Offerman attack and no actual physical contact would be necessary to award damages.]  Also, Offerman asked that the court to find that he was acting in the course and scope of his employment, such that the Ducks would share in the responsibility of payment of the verdict.

Updates will be posted when the court rules on these post-trial notions.

What about Jonathan Nathans since the attack?

Nathans never returned to professional baseball and instead pursued a law degree.  He is currently a practicing attorney in Maine.

What about Jose Offerman since the attack?
Offerman played two more seasons in the Mexican League before retiring as a player.  As the manager in the Dominican Republic Winter League, Offerman got into a heated discussion with the umpires during a game on January 16, 2010.  He punched one of the umpires and as a result was banned from the league for life.

The lifetime ban was eventually overturned and he has since managed again in the Dominican winter league and for the Veracruz Red Eagles in the Mexican League.

Wednesday, September 3, 2014

New York Court Declines to Label Wiffle Ball Bat a Lethal Weapon

Vintage Wooden Wiffle Ball Bat - Photo Credit: 
Schuh v. Hickis, 37 Misc.2d 477, 236 N.Y.S.2d 214 (N.Y.Sup., 1962)

What Happened?

Sandra Tasyn (14) was visiting relatives in New Hyde Park, New York on June 1, 1958.  She and her cousin went to the defendant Hickis' home, about a block away from her cousin's house, and began to play a Wiffle Ball game in his backyard.  

The plaintiff, Stephen Schuh (7), came over to the yard and joined in the game.  While Schuh was waiting for his turn to bat, Tasyn swung at the ball and the bat slipped from her hands, hitting Schuh in the face.  (Wiffle Ball bats were made of wood from 1955-1972!)  

Stephen Schuh's father sued on his son's behalf to recover for medical expenses and loss of services. Schuh claimed that Charles Hickis was responsible because he allowed the children to play in his yard and that Sandra Tasyn's parents should have followed her around and supervised her play.  

Both Hickis and the Tasyn's moved for summary judgement, asking the court to dismiss the case.

Who Won?

The court agreed with the defendants and granted summary judgment, dismissing the case.  The court also denied Schuh's motion to add Sandra Tasyn, who had since turned 18, as a defendant.

As to the Tasyn's, parents are not per se liable for the torts of their children, except under certain circumstances.  For example, if they were to have furnished Sandra with a gun, they could have been held liable for their own negligence in doing so.  In this case, however, the Tasyn's had nothing to do with the offending Wiffle bat and even if they did, "such ordinary instruments of play in the hands of a 14-year-old could scarcely be considered a lethal agency."

As to Hickis, the court found there was nothing wrong with the physical condition of the yard on which to predicate responsibility for this occurrence.  

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 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.