Last week, MLB's Kansas City Royals lost a motion for summary judgment in John Coomer v. Kansas City Royals Baseball Corporation, a well-publicized lawsuit arising out of the antics of the team's mascot, Sluggerrr. Coomer claimed that he was seriously injured when Sluggerrr, perhaps discharging his mascot duties with too much zeal and "hot-dogging" for the fans, hit him in the eye with a hot dog thrown during the popular "Hot Dog Toss" promotion.
Coomer's lawsuit asserted one count of negligence and one count of battery against the Royals. The Royals argued, in part, that implied assumption of risk was a complete bar to the lawsuit.
There seemed to be little dispute that the risk of being struck by an errant object (even a tossed hot dog) was a well-known or incidental risk associated with a professional baseball game, of which Coomer was aware and to which he consented. However, Coomer argued that the Royals, by and through its employee Sluggerrr, failed to exercise reasonable care in throwing hot dogs into the stadium seating area due to the manner in which the Hot Dog Toss was performed. Sluggerrr allegedly did not throw the hot dog in an arc high into the stands. Rather, he projected the hot dog directly into Coomer, who was seated only a few feet away. Coomer successfully argued that the Royals' purported failure to supervise and train Sluggerrr regarding the proper method to toss a hot dog into the stands caused his injuries, and was not the sort of risk he assumed when he attended the baseball game. (The Circuit Court of Jackson County, Mo., dismissed the battery claim, because although the toss may have been negligent, there was no evidence that Sluggerrr, or anyone on behalf of the Royals, intended to harm Coomer.)
Interestingly, the court's decision indicated that the Hot Dog Toss is one of the inherent, common risks of injury associated with a baseball game that a spectator may assume. This may be the first time a court has held that such a promotional activity presents a similar risk of injury at a baseball game as an errant baseball or bat does. So, although the Royals lost this motion, the court's decision in Coomer may open the door for other teams and venues to argue that spectators injured by flying hot dogs and T-shirts (if the tosses are performed with due care) assume the risk of injury and cannot sue. This is certainly a result that teams and venues can relish.
