Legal News

Fan's Suit Over Stray Sausage Throw Can Go to Trial

By Matthew Heller, Editor

A Missouri judge has refused to toss the Hotdog Toss case, ruling that a jury should decide whether the Kansas City Royals' "Sluggerrr" mascot recklessly hurled a foil-wrapped wiener at a fan, injuring him in the eye.

The Royals struck out with what is usually an effective defense in sports injury lawsuit, On Point has learned, as Jackson County Circuit Court Judge W. Brent Powell said John Coomer can proceed with his negligence claim arising from the fateful frankfurter toss at a game in September 2009. Sluggerrr's errant "behind-the-back" throw allegedly detached Coomer's retina.

"While Plaintiff may have assumed the risk inherent and common to a baseball game, including the Hotdog Toss, Plaintiff did not assume the risk created by these alleged acts of negligence committed by Defendant and its employee," Powell said in a Feb. 9 opinion denying the Royals' motion for summary judgment.

Courts have routinely found that baseball fans assume the risk of being hit by a foul ball during a game. The Royals argued that the same legal doctrine applies to "customary activities" associated with the game of baseball.

"It is simply undeniable that the Hotdog Toss is an activity so intimately intertwined with Royals baseball that one who attends a Royals game assumes the risks associated with the Hotdog Toss," the team said in a brief.

But Powell said the Royals could be held liable for "the alleged negligent manner in which Defendant and Sluggerrr conducted the Hotdog Toss." Specifically, he noted,

Plaintiff alleges in his Petition that Sluggerrr "[i]nstead of throwing the hotdog at an arch high into the stands, Slug[gerrr] lost control, or was reckless with his throw, and threw the hotdog directly into Plaintiff, who was sitting a few feet away."

The mascot's throw allegedly traveled from the top of the third base dugout to Coomer's seat six rows back. Coomer is seeking at least $25,000 in damages, alleging, among other things, that the Royals failed to adequately train Sluggerrr "as to the proper method of throwing hotdogs into the stands of Kauffman Stadium."

"The hotdog that struck Plaintiff's face was thrown with sufficient force to knock Plaintiff's hat off his head and into the row of seats behind him," Coomer said in a brief.

The case could set a sports injury law precedent because no court has directly addressed whether assumption of risk applies not only to the game of baseball itself but also to an "entertaining sideshow" to a game.

In the summary judgment motion, the Royals noted that Coomer is "a lifetime baseball fan" who knew "he was likely to experience promotional activites where items would be thrown into the stands" and "admits he chose to look away from the hotdog being thrown in his direction. Can Plaintiff really be heard to complain when he was struck by that very same hotdog?"

"Allowing Plaintiff's claim to survive summary judgment," the team continued,

would ignore the 'peanuts and cracker jacks' of baseball. It would ignore the fact that, today, attending a baseball game at a major league ballpark is about more than the game itself.

Coomer responded that the negligent and/or reckless launching of hotdogs "is not an essential or integral part of the playing of a baseball game," and

if Defendant owes its invitees no duty of care with regard to "common" promotional activities, then there is nothing to prevent Sluggerrr ... from firing t-shirts or hotdogs from the mechanical cannon - not into the upper decks - but instead directly at a someone's 10-year-old daughter sitting in the first row of the stands.

Judge Powell did dismiss Coomer's battery claim, finding "no genuine material issue of fact ... that Defendant or its employees intended to harm or offend anyone, let alone Plaintiff."

By Matthew Heller
On Point

Full post as published by On Point News on February 10, 2011 (boomark / email).