Coomer suffered a detached retina that required three surgeries after being hit during a September 2009 night game. He was seeking $25,000 in damages.
The Royals argued that Coomer knew the risk of a wayward hot dog since he had attended 175 games and that he was at fault for not protecting himself given his seat six rows behind the third base dugout.
Byron Shores, who played Sluggerrr testified that he did not remember the particular hot dog toss in question.
Royals lawyers pointed out that Shores is an experienced mascot performer who also appears in the Truman the Tiger costume for the University of Missouri and was the recipient of the Big 8 Mascot of the Year. We was pressed on the “arc” and “velocity” of his hot dog tosses — which are sometimes done with an air cannon.
In my torts class, we discuss whether it would be more efficient to hold all such accidents inside a stadium to a strict liability standard. This would force teams to internalize the costs of such practices and to “avoid all accidents worth avoiding.” We have seen how injuries from flying balls and pucks during games are handled under negligence and often rejected as the basis for recovery. There are strong assumption of the risk arguments as well as contributory (comparative) negligence claims. However, there remains the question of whether stadiums are the “cheapest cost avoider” in such accidents and best able to avoid these accidents at the lowest cost. Before joining the federal bench, Guido Calabresi wrote extensively on the use of strict liability and the identification of the cheapest cost avoider.
In this case, I must confess that I first picked up this story off Reddit as an example of a questionable lawsuit. However, with a bit more thought, I am not so sure. While the Kansas jury was quick to rule for the Royals, it seems to me that shooting hot dogs into a crowd with an air cannon is a bit reckless, I have seen tee-shirts shot into a crowd, which seem pretty benign. (Though I will note that Maude Flanders’ death was caused by such flying tee-shirts). The question is whether this practice would continue if the Royals were forced to carry the costs of injuries. I am also not sure of how the jury would have handled someone who was at their first Royals games and was laid low by a flying frank.
This video gives you an idea of the velocity of the launches by Sluggerrr:
Source: Chicago News
Jonathan Turley