No Joy In Mudville When The Great Sluggerrr Struck Out: Missouri Supreme Court Rules Against Kansas City Royals In Hotdog Tort Case

SluggerrrWe have been following the fascinating litigation over the Kansas City Royals mascot, Sluggerrr, and his tortious injury to fan John Coomer. The Missouri Supreme Court has ruled on behalf of a baseball fan who says he was hit in the eye with a hot dog thrown by Sluggerrr, the Kansas City Royals mascot. Coomer sued the Kansas City Royals and its mascot Sluggerrr after he was hit in the eye by a hot dog thrown into the crowd. Coomer suffered a detached retina and other injures. A jury ruled against him in favor of their popular mascot in a verdict that I previously questioned since it seems to be clearly negligent to fire these projectiles into the crowd. The Missouri appellate court later wisely reversed the verdict. Now The Missouri Supreme Court has ruled in Coomer v. Kansas City Royals, and affirmed the appellate court — a two-appeal losing streak for Sluggerrr.

Here are the facts according to the appellate court:

At trial, Mr. Coomer testified that on September 8, 2009, he went to the Royals game with his father. To be closer to the game, instead of sitting in their ticketed seats, Mr. Coomer and his father sat in open seats six rows behind the third base dugout. Between the third and fourth innings, the Royals had a promotional event, the “Hotdog Launch.” Mr. Shores testified that the Royals had been doing the Hotdog Launch at home games since approximately the year 2000. In between innings, the Royals launched 20-30 hotdogs to the fans, either through an air gun or by a hand throw. The hotdogs shot out of the air gun were wrapped in bubble wrap and the ones Mr. Shores threw were typically wrapped in foil. Mr. Shores testified that he used a number of types of throws to entertain the fans: “overhand, over the shoulder, behind the back, . . . sidearm.” The jury was shown videos of several games, including the night of September 8, 2009, although the throw at issue had not been videotaped.

Mr. Shores had no recollection of conducting the Hotdog launch any differently on September 8, 2009. He shot hot dogs into the stands with an air gun, and then began tossing hotdogs into the stands by hand. Mr. Shores was in the third base dugout, in front of Mr. Coomer and his father, and people behind them were cheering and yelling for Mr. Shores to throw hot dogs to them. Mr. Coomer testified that he saw Mr. Shores turn his back and make a motion with his arm behind his back; Mr. Coomer looked away to the scoreboard and “a split second later” something hit him in the face. The impact knocked off his hat. Because the throw came so quickly, Mr. Coomer was convinced it was a straight-line throw rather than the soft overhand tosses Mr. Shores had previously been making.

Two mornings later, Mr. Coomer noticed a problem with his vision. A tearing and detachment of his retina was subsequently diagnosed and he underwent surgery. He lost vision in his eye for about three weeks and subsequently developed a cataract. In December 2009, Mr. Coomer had an additional surgery for the cataract and now has an artificial lens in his eye. He testified that his vision in that eye suffers more impairment than prior to the injury.

This is a great case and a great opinion for those of us who love torts. It touches on themes of assumed risk, comparative negligence, and implied warnings. The adoption of comparative risk often eliminates or curtail assumption arguments as explained by the court:

When the risk arises from the circumstances (e.g., from a condition on the defendant’s property or the inherent nature of the defendant’s activity), “implied primary assumption of the risk” completely bars recovery by a plaintiff who knowingly and voluntarily encounters that risk. Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 711-12 (Mo. banc 1990); Reflections, 50 UCLA L. Rev. at 487-88. When the risk is created by defendant’s negligence, on the other hand, this has been identified as “implied secondary assumption of the risk.” Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 395 (Mo. App. 1999); Reflections, 50 UCLA L. Rev. at 489. Understandably, courts were less willing to bar all recovery in the latter circumstance unless the plaintiff not only knowingly and voluntarily acquiesced in the risk created by the defendant’s negligence but also acted unreasonably in doing so. Id.

Accordingly, prior to the advent of comparative fault, a plaintiff’s claim was barred completely by assumption of the risk if the plaintiff (a) expressly consented to assume a known and understood risk (i.e., “express assumption of the risk”); (b) implicitly consented (based on his conduct and surrounding circumstances) to assume a known and understood risk that was not created by the defendant’s own negligence (i.e., “implied primary assumption of the risk”); or (c) implicitly consented (based on his conduct and surrounding circumstances) to assume a known and understood risk that resulted from the defendant’s own negligence, provided that the plaintiff acted unreasonably in doing so (i.e., “implied secondary assumption of the risk”). Though all three were lumped together under the heading of assumption of the risk and treated as affirmative defenses, only the latter application was properly viewed as such.

The version of comparative fault adopted by this Court in Gustafson fundamentally altered this landscape. Section 1(a) of the Uniform Comparative Fault Act (the “UCFA”) provides that “any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as compensatory damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.” Gustafson, 661 S.W.2d at 18 (quoting from the UCFA, which is set forth in full in an appendix to that opinion). Section 1(b) of the UCFA defines “fault” for purposes of section 1(a) to include “unreasonable assumption of risk not constituting an enforceable express consent.” Id.

As a result, Gustafson, rejects any further application of “implied secondary assumption of the risk.”

The court then goes on to reject the notion that getting hit by a hotdog (as opposed to a baseball) is an inherent risk of attending a baseball game:

to the Royals, the risk to a spectator of being injured by Sluggerrr’s hotdog toss shares the same essential characteristics as the other risks that this Court (and many others) determined long ago were inherent in watching a baseball game in person, i.e., risks that a spectator will be injured by a flying ball or bat. The Court disagrees.
The rationale for barring recovery for injuries from risks that are inherent in watching a particular sport under implied primary assumption of the risk is that the defendant team owner cannot remove such risks without materially altering either the sport that the spectators come to see or the spectator’s enjoyment of it. No such argument applies to Sluggerrr’s hotdog toss. Millions of fans have watched the Royals (and its forebears in professional baseball) play the National Pastime for the better part of a century before Sluggerrr began tossing hotdogs, and millions more people watch professional baseball every year in stadiums all across this country without the benefit of such antics.

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. As noted above, “inherent” means “structural or involved in the constitution or essential character of something: belonging by nature or settled habit,” Webster’s Third New International Dictionary (1966), at 1163 (emphasis added). There is nothing about the risk of injury from Sluggerrr’s hotdog toss that is “structural” or involves the “constitution or essential character” of watching a Royals game at Kauffman Stadium.

It is a great read and one of the best comprehensive treatments of comparative negligence and assumption that I have read.

As for Sluggerrr, an appeal to the United States Supreme Court would be dubious since this is a matter of state law. Such an appeal would lead Sluggerrr swinging with the same purpose as the Mighty Casey:

200px-Holliston-mudville-welcome-sign

Oh, somewhere in this favored land the sun is shining bright;
The band is playing somewhere, and somewhere hearts are light,
And somewhere men are laughing, and somewhere children shout;
But there is no joy in Mudville — mighty Casey has struck out.

Here is the latest decision: Coomer opinion

40 thoughts on “No Joy In Mudville When The Great Sluggerrr Struck Out: Missouri Supreme Court Rules Against Kansas City Royals In Hotdog Tort Case”

  1. I hope that they bar this fan from entering their stadium in the future. What I object to is that they call this junk meat packaged into a tube a “hot dog”. If they are really serving dog ickDay then they should be shot for dog abuse.

  2. jim, Everyone falls in love w/ speed. But, some of the greatest pitchers had average fastballs. The aforementioned Spahn, Catfish Hunter, the entire Braves rotation back in the 90’s. I was a pitcher in high school and Legion. A football shoulder injury ended my career. I was blessed w/ a natural sinker. Threw a lotta ground balls. I was taught by a great coach who played AA ball for the Pirates. Booze ended his career. “Work quickly, THROW STRIKES, change speed.” That was the his mantra and that of Leo Mazzone, who coached that great Braves staff.

    Impressive you still play. I had a case of plantar fasciitis last winter in San Diego. The podiatrist I saw plays in a good over 50 baseball league. He has to be 60. It is a nationwide league run by the father of Meadow Soprano[Jamie Lynn Sigler]. Good trivia! What position. You playing this summer?

  3. jim, Great comment. I grew up in Ct. which is a swamp of Yankee, Red Sox, and a few Met fans. My father’s family were diehard Yankee fans, my mom’s family Red Sox fans. I was w/ my old man and a Yankee fan. But, unlike almost all Yankee fans, I could not hate the Red Sox. My uncle Pat would babysit us w/ his battle ax wife, Lizzy. I would sit on the front step of their house, listen to Curt Gowdy doing Red Sox games w/ Uncle Pat. He would give me a sip of his Narragansett beer, always the first sip out of his mug because he knew I liked the foam. Pat and my old man would bust each other’s balls but never w/ animosity, just a good natured rivalry. I learned a lot about life from that relationship.

    Going to school w/ many NYC and north Jersey guys, I knew a lot of Yankee fans. They feared and hated Brett, in that order. Brett owned Goose because you CANNOT throw a fastball by the great George Brett. It was fitting that he and Robin Yount went into the Hall together. Two SoCal surfer dudes who played their entire career w/ one team. Jeter may be the last one of that genre. The Royal killers were Nettles, Munson, and Sparky Lyle. Munson’s death was tragic, but I believe key in the Royals winning on 1980.

  4. Darren:

    “I still think of when a railroad tank car exploded in my home town back in the 70′s. The blast damaged our house and many of the homes on my street. A few days later, a couple of men from the railroad walked through the neighborhood and asked each homeowner what was damaged. They cut a check to my dad on the spot and paid for everything. That’s the way things should be in my view.”

    That must have been scary. Did everyone escape injury? At least you can fix a house.

    It sounds like the railroad took immediate responsibility, and did not try to short-change people impacted by the explosion. I wish that happened more often.

    We are currently following the Brian Stowe/Frank McCourt case here in CA. Stowe, a Giants fan from Santa Clara, attended a Dodger game wearing a Giants t-shirt. He and his friends were harassed by a group of rowdy Dodger fans. Stow waited in his seat for the fans to file out to avoid further problems, but the Dodger fans were waiting for him. They beat him and gave him a permanent traumatic brain injury. He now lives in a resident care facility.

    Stow’s family is suing the Dodgers because it came out that their security was extremely lax. They did not follow their own security guidelines. The contention is that the perpetrators should have been ejected from the game. And that there was no security presence that could have prevented them from thinking they could beat someone up and get away with it.

    Security has been so bad at Dodger stadium that it is no longer the safe, family place it used to be. They have also had problems with gangs in the past.

    http://www.nbclosangeles.com/news/local/Timeline-Bryan-Stow-Case-122459754.html

    http://www.nbclosangeles.com/news/local/Closing-Arguments-in-Bryan-Stow-Lawsuit-Against-Dodgers-264764231.html

    Making it worse, the Dodgers claim that Mr Stowe shares some of the blame because he had been drinking. By all accounts, he had not shown any aggression, did not even have a chance to fight back, did not taunt the Dodgers fans, and in fact had sat in his seat for a while to try to avoid meeting up with those who had threatened him. In addition, he had a designated driver. So I hardly think his legal drinking gives someone else license to almost murder him.

    Most of the blame does lie with those who injured Mr Stowe. But if it is true that the Dodgers had poor security, after a series of problems with violence at the stadium, and that they did not follow their own security guidelines, then they do share some of the blame.

    My question for the lawyers here is, how much blame, if any, do you feel the Dodgers have? And how much should they pay the Stowe family? Brian’s care in a resident facility will be exorbitantly expensive, costing millions of dollars.

  5. I still think this is crazy. You go to ball games, you’re gonna get hit sometimes. Pay the medical and be done.

    1. Keebler – you ‘assume the risk’ for being hit by a baseball, but not by a hotdog. The trial court thought like you did. The two appellate courts held that you do NOT assume the risk for flying hot dogs.

  6. Nick, It’s good to hear some baseball talk. As a 10 year old growing up in NY, I was routing for your nemesis back in those days. I can remember really hating George Brett, especially when he got the better of “The Goose”. I remember seeing the pine tar game on TV and loved watching Brett blow a gasket. The funny thing is, now that I’m older I actually can appreciate George Brett. Though, I must admit, there are quit a few Red Sox and Dodgers players that I will never like.

    I stopped really following the Yanks when they threw out their history by knocking down the “House that Ruth Built”. People can talk all they want about how great the new stadium is, but you know what? Larson didn’t pitch his perfect game there, either did Cone or Wells, Jackson didn’t hit 3 homers on 3 consecutive pitches in game 6, Marris didn’t hit #61 there and Gehrig didn’t give his fare well speech there.

    And now as a league they are ruining the game with instant replay. Baseball is timeless and should be judged by umps. One close play is not any more important than another.

    You are right about the speed of pitching. I play in a 35 and older league and we have a couple of guys who can throw in the upper 70’s. they are successful because they are the exception to what we normally see. But l we hit them when we see them on a more regular basis. And as for slowing down the pitchers for more hits? Doesn’t work. I can’t tell you the number of times my teammates say half way through the game, “Man, this guys got nothing, we should be crushing him”. There are guys who can throw and there are guys who can pitch.

  7. Awh dog gone it – the dog launching dogs (kind a weird to begin with) has now gone to the bury pile on the case of hot dog projectile.

    Rough, rough!

  8. In the game last night Peralta pitched for the Brewers and was throwing consistently 96-97mph. But, a Rockie’s batter turned on one and hit a grand slam. When you hit those fastballs on the sweet spot the ball travels REAL far, Real fast. I don’t care how hard you throw. Big League hitters will time your fastball. The great Warren Spahn said, “Hitting is timing, pitching is disrupting the batters timing.” Few did it better than Warren. The most wins ever by a southpaw, 363 I believe. Met him in a bar on MV waiting to be seated for dinner. A gentleman and loved all the kids. We had family reunions and there were 8 cousins of various ages. He spoke w/ all of them. I have noticed people who instinctively squat down to be eye level w/ a child are good people. It shows respect for a child. It says I don’t want to tower over you, I want to be eye to eye.

  9. Saucy. Wasn’t it you who said he was a Cards fan but loved Wrigley?

  10. randyjet wrote “may well have been a pre-existing condition”

    I suspect the attorneys dealt with that issue.

    “I am sure that the Royals had no idea that such a freak accident could occur”

    As I told Nick, as an experiment, take a section of aluminum foil and use it to scratch a piece of meat. The mascot was an imbecile and management was asleep at the switch.

    1. Saucy, Virtually anything can become dangerous under the right circumstances. Ever get a paper cut? Even the TSA has not gone so far as to declare paper to be a prohibited item, even though it can cause damage. A better test is would I be willing to take a hot dog in the face? I would even if were thrown by Sandy Koufax at the same distance. Of course, if Sandy threw it, it would have to be a Hebrew National dog, which would be even better.

  11. Nick wrote “soft, underhand lob”

    There is a world of difference between the above and a hot dog fired out of an air gun. Or a hot dog wrapped in aluminum foil thrown at the head. As an experiment, take a section of aluminum foil and use it to scratch a piece of meat.

    “Saucy hate the Royals”

    This little mugwump does not watch baseball. If they would find a way to slow down pitches so there would be more hits, maybe I’d be interested.

  12. Saucy hate the Royals, they beat his beloved Cards in the 1985 World Series, Now he’ll mention Don Denkinger. I lived in KC from 1975-81. I was a huge Royals fan and tuned my bride into one also. We would sit in the left field bleachers, tickets were $1.50. We averaged 40-50 games a year. I had an enormous amount of guilt watching her sob like a little girl when the Yankees beat the Royals 3 straight years[’76-78]. Having played sports, I had experience to draw upon. But, my dear bride had no such experience and her sadness was palpable. But, the great part of sports is redemption. In 1980 the Royals SWEPT the Damn Yankees. My bride was on Cloud Nine. “The thrill of victory, the agony of defeat, the human drama of athletic competition.”

  13. I went to the Rockies/Brewers game last night. A vendor threw me, and everyone else who purchased peanuts, the bag w/ a soft, underhand lob. I’ve seen this girl vendor for years. She’s not a showboat, it is really an efficient way to dispense peanuts, particularly to people in a long row. I’ve been to 26 MLB ballparks. That is SOP for peanuts. I wonder if this decision will end this nice tradition?

  14. I certainly agree with the reasoning of the court. In the long run it might have been better to take care of his injuries immediately. There is usually a doctor in the house.

  15. randyjet wrote “the hot dog toss was an obviously well known part of the game”

    On the contrary, anyone who attends a baseball game anywhere in the world can expect the possibility of being hit by a ball, a bat (or part of one), or an overeager fan, but only dedicated KC Royals fans would know of an imbecile mascot shooting hot dogs at them via an air gun. Are you seriously suggesting that non-local (or non-fanatical) people thinking of attending a baseball game must first hire a private investigator to determine special risks?

    1. Saucy would have a point IF the mascot had hidden in the dugout, and popped up unexpectedly and threw a line drive at the guy. The FACT is that the mascot had been tossing hot dogs for a while, so the guy KNEW what was happening. He had NO concerns for his safety, and in FACT INCREASED his danger by moving to a seat he was not legally entitled to. The FACT is that he like most of us would not expect a hot dog to be a source of injury. I would be glad to take a hot dog in the face if it were a good one and had relish and mustard provided.

      Then there is the problem as to the cause of the detached retina. A friend of mine had NO injury to his retina, yet it detached on its own. I would have to guess that there may well have been a pre-existing condition that would make such a thing more likely. The FACT that the victim did nothing at all to mitigate the threat shows that HE TOO did not view the activity as being dangerous. I am sure that the Royals had no idea that such a freak accident could occur. They dropped the ball though when they did not pay up at the beginning. It was bad PR and worse tactically since they probably paid more in legal fees than they would have paid to make this go away. Of course, I assume that the Royals did not offer to settle, in which case they would be the ones more at fault for this bad legal decision.

      1. randyjet – the victim seems to have turned away momentarily and then in turning back got hit in the eye. They will need signs saying “While the mascot is throwing hotdogs, keep your eye on the mascot at all times.”

  16. Well, I have to disagree since the hot dog toss was an obviously well known part of the game. So I think that the fact that it is not an official part of the game is rather irrelevant. Darren is right too in that the Royals should have made this go away a lot sooner. It is silly to contest this thing since it did result in real damages.

  17. Darren, I agree. If the Royals Org. had been proactive, hopefully the issue wouldn’t have escalated. I do wonder though, should the fact that the fan moved his seat play any roll in this? Could the mascot have said, “Hey man, all I know is, I was throwing it to an empty seat and the next thing I know there is a guy there?”

  18. Darren Smith wrote “men from the railroad … cut a check to my dad on the spot and paid for everything”

    Allstate was infamous for cutting checks to their customers soon after an auto accident, but the checks were never enough to pay for the entire repair.

  19. It is good that their supreme court ruled as they did.

    The baseball team’s management could have probably avoided all this litigation by attending to this man’s injuries promptly and taking care of his medical costs and then some.

    I still think of when a railroad tank car exploded in my home town back in the 70’s. The blast damaged our house and many of the homes on my street. A few days later, a couple of men from the railroad walked through the neighborhood and asked each homeowner what was damaged. They cut a check to my dad on the spot and paid for everything. That’s the way things should be in my view.

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