Fan injured by flying hot dog at Royals game has lawsuit reinstated by Mo. SC

JEFFERSON CITY, Mo. (Legal Newsline) - The Supreme Court of Missouri has reversed a jury's verdict in favor of the Kansas City Royals Baseball Corporation in a lawsuit alleging a flying hotdog thrown by mascot Sluggerrr caused eye injuries to a spectator.

Judge Paul C. Wilson delivered the June 24 opinion, with all judges concurring.

The Missouri Supreme Court held that the trial court erred when it allowed the jury to decide whether injury resulting from a flying hotdog during a customary activity is an inherent risk in watching a sporting event. It therefore vacated the judgment favoring the Royals and remanded the case back to the trial court.

While the court has concluded in the past that baseball teams cannot be sued for injuries caused by stray balls and bats, as such risks are unavoidable and oftentimes desirable at baseball games, it has now held that stray hotdogs are not typical objects to watch for.

"The risk of being injured by Sluggerrr's hotdog toss, on the other hand, is not an unavoidable part of watching the Royals play baseball," Wilson wrote. "That risk is no more inherent in watching a game of baseball than it is inherent in watching a rock concert, a monster truck rally, or any other assemblage where free food or T-shirts are tossed into the crowd to increase excitement and boost attendance."

"Sluggerrr may make breaks in the game more fun, but [the plaintiff] and his 12,000 rain-soaked fellow spectators were not there to watch Sluggerrr toss hotdogs; they were there to watch the Royals play baseball," he added.

Wilson concluded that it is up to the jury to decide whether Sluggerrr injured Coomer by hitting him with a hotdog, and whether Sluggerrr was negligent in doing so.

Plaintiff John Coomer, a longtime baseball fan, brought his father to see a Royals game in Kauffman Stadium on Sept. 8, 2009.

The ballpark was somewhat empty because it had rained a majority of the day, Wilson explained.

Because the crowd was small, Coomer and his father left their assigned seats early in the game to sit in a pair of empty seats six rows behind the visiting Detroit Tigers' dugout.

Coomer said he has attended about 175 Royals games prior to this game and admitted that he has watched Sluggerrr participate in the customary Hotdog Launch.

Not long after the seat change, Sluggerrr climbed on top of the visitor's dugout to begin the Hotdog Launch, a Royals tradition since 2000 that takes place between innings. As part of the spectacle, Sluggerrr tosses hotdogs by hand to fans seated nearby and then uses an air gun to shoot hotdogs from the dugout to fans seated farther away, the opinion states.

Taking a break from using the air gun, Coomer said he saw Sluggerrr switch to throwing hotdogs by hand at the game. Then the mascot turned away from the crowd as if to throw a hotdog behind his back. In that moment, Coomer testified that he turned to look at the scoreboard and admits he didn't see the thrown hotdog that allegedly injured him.

He said that a "split second later ... something hit me in the face," and described the blow as "pretty forceful," Wilson wrote.

Coomer said he didn't know he had been injured right away and failed to report the incident when it happened.

Instead he said he stayed for most of the game and returned the next night for another thrilling game against the Tigers.

By Sept. 10, 2009, Coomer testified that something was wrong with his left eye.

Roughly eight days after the incident, Coomer visited a doctor and was diagnosed with a detached retina. He had surgeries to repair the retina and to remove a "traumatic cataract" in his eye.

Coomer later filed his two-count lawsuit in the Circuit Court of Jackson County in February 2010 alleging negligence and battery.

The Royals admitted responsibility for the mascot but denied any acts of negligence.

During trial, the employee who portrays Sluggerrr testified that he didn't remember the throw that injured Coomer, but said he was careful when tossing the hotdogs to avoid injury. For example, he said he threw the hotdogs in an arch so they are easier to catch and attempted to make eye contact before making a toss.

Before trial commenced, Coomer said the verdict relies on issues of comparative fault and assumption of the risk, adding that the risk of getting hit by a hotdog at a baseball game is not a risk inherent in the nature of the activity. Judge W. Brent Powell said both questions are for the jury to decide.

When preparing for trial, the Royals sought to add a tail to jury instruction nine; thus, directing the jurors to instruction 11, which asks the jury to decide whether injury from the incident is an inherent risk of watching a Royals game. Coomer objected, but was overruled.

Ultimately, the jury entered a verdict in favor of the Royals, assessing 100 percent of fault to Coomer.

Coomer moved for a new trial based on his objection to the jury instructions, which Powell denied. Coomer appealed to this court.

The court agreed with Coomer, holding that the issues of assumption of the risk and comparative fault are to be decided by the court rather than the jury. As a result, the Supreme Court vacated the judgment and remanded the case for further proceedings.

Wilson explained that if the question of inherent risks is left up to separate juries in each case, a sports team would never know what duty it owes to its spectators.

"The reason courts - not juries - decide what duty a defendant owes is to ensure that all similarly situated defendants are treated equally and, more importantly, to give notice of these duties so that potential defendants will have an opportunity to adjust their conduct accordingly," Wilson wrote.

The opinion defines assumption of the risk, stating that "if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it."

Noting that the doctrine is easier to define than to apply, Wilson explained that defendants tend to rely on implied assumption of the risk, which is based on a plaintiff's conduct and the surrounding circumstances.

Citing the Gustafson decision, however, Wilson wrote that "when the plaintiff's decision was reasonable, it cannot be used to reduce his recovery because reasonable behavior does not constitute 'fault' under the [Uniform Comparative Fault Act]."

He added that the decision precludes consideration of the plaintiff's conduct when assuming risk except as a partial defense under a proper comparative fault instruction.

Wilson wrote that before the Royals joined the Kansas City Athletics, the court recognized that certain risks come with watching sporting events, adding that the home team was not liable "for risks that are inherent in watching a baseball game based on the team's failure to take steps that could defeat the reason spectators are there at all - to get as close as they can to the action without interfering with the game they came to watch."

However, citing the Lowe decision, Wilson added that a jury can hold a team liable for inherent injuries if a mascot negligently altered or increased the risk, causing a plaintiff's injuries.

"[I]f 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," Wilson wrote.

While admitting that the case is not a baseball rule case because the object at issue is not a ball or bat, the Royals further argued that the Hotdog Launch is a common sense activity and shares the same essential characteristics as other inherent risks at a baseball game.

The court disagreed, stating that "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."

Addressing Coomer's argument that the jury instructions were prejudicial, Wilson wrote that the trial court erred when it allowed the Royals to include the instruction directing the jury to Instruction 11.

"Instruction No. 11 not only puts an issue (implied primary assumption of the risk) to the jury that must be decided by the court as a matter of law, it created an unacceptable risk that the jury found the Royals negligent but then did not assess at least some percentage of the fault to the team because that is what the introductory phrase to Instruction No. 11 told the jury to do," Wilson wrote.

Therefore, the court concluded that the judgment should be vacated and remand is proper, adding that if the case goes to trial for a second time in the lower court, it will be the jury's duty to decide whether Sluggerrr injured Coomer by hitting him with a hotdog and whether he was negligent in doing so.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com