Thank you to all the readers who sent me the media story about Sluggerrr, the Kansas City Royals mascot who has been embroiled in litigation on account of injuring a fan’s eye, during a September 2009 game, when the furry lion threw, behind his back, a four ounce foil wrapped hotdog into the stands. This was done as part of Sluggerrr’s regular in game antics. The fan, John Coomer, subsequently needed two eye surgeries. I wrote about Sluggerrr’s legal ordeal in March as part of the Coverage Opinions Baseball Issue.
Brief background. Sluggerrr was successful at trial. A jury found the furry guy to be zero percent at fault and the fan, Mr. Coomer, one hundred percent at fault. However, in January, the Missouri Court of Appeals, in Coomer v. Kansas City Royals Baseball Corporation, reversed [enhanced version available to lexis.com subscribers], holding that it was error for the trial court to charge the jury on primary implied assumption of the risk when it comes to a flying hotdog. The appeals court explained: “Everyone 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. However, the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game. Consequently, a plaintiff may not be said to have consented to, and voluntarily assumed, the risk merely by attending the game.”
[I checked out Sluggerrr’s website. He’s adorable. He doesn’t look like he would hurt a fly. Follow him on Twitter: @Sluggerrr.]
Until hearing from Coverage Opinions readers, and being sent a recent media story, I had no idea that the Sluggerrr litigation was still going on. The case is now before the Supreme Court of Missouri [enhanced version available to lexis.com subscribers], which held oral argument on September 11. The Phillie Phanatic filed an amicus brief supporting Sluggerrr. [You can hear the oral argument on the Missouri Supreme Court’s website. It’s interesting and entertaining.]
Here is the issue at the heart of Sluggerrr’s case. In general, fans seeking damages for injuries sustained by a foul ball have a very difficult time recovering from the stadium operator. The majority of courts that have confronted the question have adopted the so-called “Baseball Rule,” which limits the duty owed by baseball stadium operators to spectators injured by foul balls. The Baseball Rule generally provides that a baseball stadium operator is not liable for a foul ball injury as long as it screens the most dangerous part of the stadium and provides screened seats to as many spectators as may reasonably be expected to request them.Sluggerrr’s case is getting a lot of attention, according to the recent media story, because it raises the question whether this “baseball rule,” or “no duty rule,” should also apply to injury caused by a mascot. Mascot antics have become an important part of sporting events. The question being asked is, if Coomer wins, will it cause teams to rethink some of their promotions or take additional measures to keep spectators safe? [I doubt it. I don’t think too many mascot antics are dangerous and what happened to Mr. Coomer was just a freak accident.] In any event, a lot of attention is on this case and I’m very curious to see what the Missouri high court does.
Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.
The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.
Randy J. Maniloff is an attorney in the Philadelphia office of White and Williams, LLP. He concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.
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