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.

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