The case against the Kansas City Royals for negligence based on the acts of "Sluggerrr," the team's strange crown-headed lion-like mascot, has been reinstated by the Missouri Court of Appeals. If you've been following this story as I have, and why wouldn't you, you will recall that the plaintiff was injured at a Royals game in 2009 during the now-apparently-traditional fourth-inning "Hotdog Launch," when Sluggerrr launched a hot dog into plaintiff's eye socket. (Sluggerrr does launch dogs out of an air cannon on occasion, but this one was delivered by hand.) Plaintiff sued, alleging he suffered a detached retina.
In what may or may not have been a related development, there was somebody new in the Sluggerrr outfit the following year. See "New Royals Mascot Reportedly Training to Avoid Further Hot-Dog Incidents," Lowering the Bar (Feb. 26, 2010).
In a February 2011 motion for summary judgment, the Royals argued that the hot-dog-throwing event "is an activity so intimately intertwined with Royals baseball that one who attends a Royals game assumes the risk" of being injured by a hot dog, in much the same way that one assumes the risk of being hit by a foul ball. Plaintiff said no, this is more like the California case in which a spectator was hit by a ball after being distracted by a seven-foot-tall dinosaur that poked him with its tail. Of course it is, the judge ruled, and denied the motion. The case later went to trial, and in March 2011, a jury found in favor of the team.
On appeal, plaintiff argued that the trial judge should not have instructed the jury on the defense of assumption of risk, because “the risks created by a mascot throwing promotional items do not
arise from the inherent nature of a baseball game.... On these facts," the court held, "we agree":
“[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.” [cite omitted] 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.
Emphasis added. The court also held, though, that it was not a mistake to submit comparative fault to the jury. That is, if there is a retrial the jury will again be instructed that some fault can be attributed to the plaintiff even if the complete assumption-of-risk defense doesn't apply. For example, here the plaintiff "looked away prior to the hot dog allegedly being thrown, despite facts from which it could be reasonably inferred a hot dog was about to be thrown." This argument may reduce, though probably not eliminate, any recovery plaintiff may get after a retrial.
Please stay alert at future baseball games, especially in the presence of facts from which it can be reasonably inferred that a hot dog is about to be thrown. Or just wear goggles.