We previously discussed the torts case involving the Kansas City Royals mascot Slugerrr, who blew out a fan’s eye with a foil-covered hotdog launched with an air cannon. Now the Phillies’ could be facing a similar lawsuit after Kathy McVay was hit by a duct taped hotdog launched by the Phillies mascot Phanatic.
McVay said that she never saw the dog coming after being launched by the huge cannon. She is presently taking a forgiving course and not threatening to sue.
There is something quintessentially Philly about duct taping hotdogs. I am not even sure what you do with a duct taped hotdog . . . once you recover from the head wound.
In the case of Slugerrr (which next to Phanatic is the weirdiest mascot in the MLB), a trial court initially ruled for the team but the appellate court ruled that launching of hot dogs was not an inherent risk of the game:
“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.”
The same rationale would seem to apply with regard to Phanatic. Notably, McVay saw the approaching hotdog but a prior shoulder shield prevented her from trying to deflect the dog. Obviously there are many fans who may be unaware or unable to shield themselves.
The dog hit her between the eyes and left her with black and blue marks. That is still better than the serious injuries experienced by the Kansas City Royals fan. However, the cannon is clearly more powerful and can reach the highest seats;
Notably, McVay ended up restating the holding in the Kansas City case. She said that this was simply not one of the risks that she expected: ‘I mean, you would think — I understand a baseball, but not a hot dog.”
She is fortunate given past recorded fatal hits from such merchandize throws.