Baseball fans assume the risk of being hit by foul balls but the Kansas City Royals may not be able to make the same argument in the case of a man who alleges an errant hot dog hurled by the team mascot struck him in the eye, detaching his retina.

Hot dog launches and t-shirt cannons are a common sideshow at sports events. The Royals mascot, a "loveable lion" known as Sluggerrr, uses an air gun to shoot hot dogs into the stands during baseball games at Kauffman Stadium.

A Kansas man alleges Sluggerrr misfired at a Royals game on Sept. 8, 2009 when he threw a hot dog from behind his back. “Instead of throwing the hotdog at an arch high into the stands,” John Coomer says in a lawsuit filed in February,

Slugger [sic] lost control of his throw, or was reckless with his throw, and threw the hotdog directly into Plaintiff, who was sitting a few feet away.

Coomer says the impact of the hot dog, which allegedly traveled from the top of the third base dugout to his seat six rows back, detached the retina in his left eye. He is seeking at least $25,000 in damages, alleging the Royals are liable for, among other things, failing to adequately train Sluggerrr “as to the proper method of throwing hotdogs into the stands of Kauffman Stadium.”

In an answer to the complaint, the Royals say the case should be dismissed under the legal doctrine of assumption of risk, which applies to injuries arising from “a feature or aspect of [a] game which is inevitable or unavoidable in the actual playing of the game” — such as, in baseball, being hit by a foul ball.

A California appeals court found that a baseball spectator could sue a minor league team over a foul ball injury because it allegedly occurred while the spectator was being distracted by the antics of a mascot. The distraction may have increased “the inherent risks to which spectators at professional baseball games are regularly exposed and which they assume,” the court said in Lowe v. California League of Professional Baseball, 56 Cal.App.4th 112 (1997).

Coomer's case raises the issue of whether assumption of risk applies not only to the game itself but also to an “entertaining sideshow” to a game. No appeals court has directly addressed that issue but a Pennsylvania judge anticipated it in a case involving a Philadelphia Phillies player who, after catching a ball for the last out of an inning, threw it into the stands, injuring a spectator.

A 2-1 majority of the Pennsylvania Superior Court said Marlon Byrd's throw did not deviate from “the common and expected practices of the game of baseball,” noting that it is “not uncommon for a player to toss a memento from the game to nearby fans.” Loughran v. The Phillies, 888 A.2d 872 (2005).

In a dissent, Judge John T. Bender fretted over where the majority's rationale would logically end. Since “entertaining sideshows” such as the hot dog or t-shirt launch are commonplace in baseball, he reasoned, a spectator would therefore assume “the risk of being struck by a hotdog or t-shirt propelled from one of these devices.”

“Of course,” Bender concluded disapprovingly,

this would mean that if one of those executing the hotdog launch imprudently aimed at spectators seated a couple of rows into the stands they would be immune if a spectator lost an eye after getting hit nearly point blank by a foil wrapped hotdog.

As Bender suggested, there is definitely a slippery slope here. After all, an aircraft flyover is a popular sideshow at sports events but would anyone argue that spectators assume the risk of a plane crashing into the stadium?

A Florida jury in 2002 rejected the case of a man who said he was hit in the eye at a Florida Marlins game by a t-shirt which was fired into the crowd with a pressurized gun by the team's mascot. There was evidence in that case, however, that the plaintiff was injured in a scramble for the t-shirt with other spectators.

By Matthew Heller
4/2/10