The Hot Dog Case and Assumption of Risk at Sporting Events

June 18th, 2014

Written for the National Association of Professional Women
Springfield, Mo Local Chapter in Legal Corner Monthly Spotlight

By: Heather Rooney McBride and Danielle R. Kerckhoff

As summer winds up, so does America’s favorite pastime: baseball.  Anyone who has been to a baseball game has witnessed the non-baseball events used to keep the crowd entertained during the game.  These events range from running the bases to the kiss-cam.  But what happens when the non-baseball events become dangerous and cause an injury?  Can a baseball fan successfully file a lawsuit against a baseball team?  The Missouri Supreme Court is currently reviewing these questions after a Kansas City Royals’ fan was injured by the Royals’ mascot, “Sluggerrr” at a baseball game in 2009. Coomer v. Kansas City Royals Baseball Corp., No. SC93214 (Mo. argued Sept. 11, 2013).

On September 8, 2009, John Coomer (“Coomer”) attended a Royals game in Kansas City, Missouri. Coomer v. Kansas City Royals Baseball Corp., 2013 WL 150838, *1 (Mo. App. W.D. 2013).  During the game, the Royals held a promotional, non-baseball event, the “Hotdog Launch.” Id.  During the Hotdog Launch, Sluggerrr launched between twenty and thirty hotdogs into the stands. Id.  Some of these hotdogs were launched with an air gun while Sluggerrr threw others, wrapped in foil, by hand. Id.

Coomer attended at least one hundred seventy-five games at the Royals’ stadium prior to the game of September 8, 2009. Id. at *3.  During the Hotdog Launch on September 8, 2009, Coomer saw Sluggerrr throwing hotdogs into the stands. Id. at *1.  Coomer looked at the scoreboard and “a split second later” was hit in the face by a hotdog. Id.  He suffered a detached retina, lost vision for three weeks, and had to undergo eye surgery. Id.

Coomer filed a lawsuit against the Royals and alleged damages of $25,000. Petition at 2 Coomer v. Kansas City Royals Baseball Corp., 2013 WL 150838 (Mo. App. W.D. 2013) (No. 1016-CV04073).  The jury determined that the Royals were not at fault. Coomer, 2013 WL 150838, at *1.  Coomer appealed and argued, in part, that the Royals should not have been allowed to defend themselves with the legal argument that Coomer assumed the risk of injury by attending a baseball game for the reason that the risk of being hit by a hotdog was not known to Coomer. Id. at *2.

A fan who attends a baseball game (or other sporting event) assumes certain inherent risks. See generally Coomer, 2013 WL 150838, at *3.  For example, it is possible that the fan may get hit by a baseball bat while attending a baseball game.  Likewise, it is possible that the fan may get hit by a golf ball or a football while attending a golf event or a football game.  Due to these assumed, inherent risks, a fan cannot successfully sue a team for injuries caused by these assumed risks.

“[E]veryone who participates in or attends a baseball game assumes the risk of being hit by a ball” because “the risk of being hit by a baseball is a risk inherent to the game.” Id. at *3 (citing Sheppard by Wilson v. Midway R-1 Sch. Dist., 904 S.W.2d 257, 262 (Mo. App. W.D. 1995)).  But Coomer argued that being hit by a hotdog was not the same as the assumed risk of being hit by a baseball. Id.  Coomer claimed he did not consent to or assume the risk of being hit by a hotdog. Id.  On appeal, the Missouri Court of Appeals Western District agreed with Coomer and reversed and remanded the decision back to the trial court.  Id. at *6.

The Royals have since appealed to the Missouri Supreme Court and argued that the risk of being hit by hotdog is an inherent risk of the Hotdog Toss, which has become an integral part of a Royals baseball game. Application for Transfer to the Missouri Supreme Court at 2 Coomer v. Kansas City Royals Baseball Corp., No. SC93214 (Mo. argued Sept. 11, 2013).  Oral arguments at the Missouri Supreme Court were heard on September 11, 2013.

The Missouri Supreme Court has yet to issue a decision in the case and could issue its ruling as late as December 23, 2014, well past the end of the 2014 baseball season.  Until that time, we are left to wonder whether a hotdog is like a baseball bat, a golf ball, and a football, which could fly toward the stands at any time, or whether a flying hotdog is something uniquely unexpected and different for which fans have not assumed risk of injury.

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