• Is That a Hot Dog in My Eye?
  • July 1, 2010 | Authors: L. Robert Batterman; Robert E. Freeman; Howard L. Ganz; Wayne D. Katz; Joseph M. Leccese; Jonathan H. Oram; Howard Z. Robbins; Bradley I. Ruskin
  • Law Firm: Proskauer Rose LLP - New York Office
  • At six feet, nine inches, and only fourteen years old, Sluggerrr the Lion, the Kansas City Royals’ mascot, may not have considered the power of his pitching or the potential for liability when he surmounted the third base dugout with a paw full of foil-wrapped hot dogs and flung them into the stands. Like Sluggerrr, the Royals fans seated around the dugout, hands in the air, shouting “Me! Me!” might not have considered the potential harm of a free flung frankfurter. But, due to John Coomer’s lawsuit against the Kansas City Royals, many are considering just these questions in the context of tort liability.  According to Coomer’s negligence complaint filed in Missouri state court in May 2010, Coomer was sitting six rows back from the dugout when Sluggerrr, apparently going for a behind-the-back toss, threw the hot dog directly into Coomer’s left eye, resulting in a detached retina, among other eye damage.

    Intent on gaining an advantage over their neighbors, baseball fans can be seen with all manner of things on the ready, from gloves to fishing nets, in the event that a baseball might end up being batted into their section, giving them a chance to take home a souvenir ball and all the customary bragging rights that go with it.  Courts have recognized the nature of baseball fans and have noted that fans actually hope to come in contact “with some projectile from the field (in the form of a souvenir baseball).” Benejam v. Detroit Tigers, Inc., (Mich. App. 2001).  It is this acknowledgment, and others like it, which have led to the limited duty rule, or the “baseball rule” as it is often called.  The rule shelters ballpark operators from certain liability associated with game-related injuries to fans and requires only that the ball park operators provide screening behind home plate and other areas where a fan would be uniquely susceptible to an injury and provide a reasonable amount of screened seating areas for fans who desire protected seats.  When an injury does occur it is often successfully argued by the defendant that the risks associated with the quintessential all-time American game are well-known and that the injured fan assumed the risks when he or she came to the game.  This affirmative defense, when successful, results in low recovery rates for fans who sustain injuries from being struck by baseballs.

    Notably, Coomer does not purport to have been hit by a ball or broken bat, or other projectile directly related to playing baseball. The media attention generated by the lawsuit may be due to the paradoxical nature of object and associated injury. But, recent developments in America’s pastime may prove to be relevant in determining what can be expected at a baseball game. Sluggerrr made his debut at Kauffman Stadium, the home of the Kansas City Royals, on April 5, 1996.  His debut coincided with the growing popularity of mascots and field entertainment designed to attract and engage young audience members. In the ensuing years, the role of mascots has grown and has been developed and expanded by baseball clubs and their marketers and branding experts.
    Whether a team’s mascot is roughing up the opposing team’s mascot or shooting (with the use of an air gun) souvenir t-shirts and plush toys into stands of excited fans, many fans look forward to going to the ball park not only to “root, root, root for the home team” but to enjoy the entertainment that is associated with the game, including the antics of the mascot.   Thus, it might be argued that these kinds of antics, typical of most mascots, include throwing things into the stands.