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Wednesday, June 25, 2014

MO: Injury By Flying Hot Dog Is Not An "Inherent Risk" Of Watching A Baseball Game

Courts have regularly held that flying or tossed baseballs and broken bats entering the spectator area during competition are an inherent risk of the sport.  Where spectators have been injured by such objects during competition, courts in subsequent litigation usually employ a limited duty rule applied to the ballpark operator.  E.g., Edward C. v. City of Albuquerque, 241 P.3d 1086 (N.M. 2010) (deciding that "a spectator must exercise ordinary care to protect himself or herself from the inherent risk of being hit by a projectile that leaves the field of play and the owner/occupant must exercise ordinary care not to increase that inherent risk").

But what about flying hot dogs?  A spectator at a Kansas City Royals baseball game alleged he sustained injuries to his eye when he was struck by a flying hot dog tossed by the Royals' mascot during a promotion.  The jury found for the Royals, but yesterday, the Missouri Supreme Court reversed citing jury instruction error and remanded the case for a new trial.  That court held:

In the past, this Court has held that spectators cannot sue a baseball team for injuries caused when a ball or bat enters the stands. Such risks are an unavoidable – even desirable – part of the joy that comes with being close enough to the Great American Pastime to smell the new-mown grass, to hear the crack of 42 inches of solid ash meeting a 95-mph fastball, or to watch a diving third baseman turn a heart-rending triple into a soul-soaring double-play. The risk of being injured by Sluggerrr’s hotdog toss, on the other hand, is not an unavoidable part of watching the Royals play baseball. That risk is no more inherent in watching a game of baseball than it is inherent in watching a rock concert, a monster truck rally, or any other assemblage where free food or T-shirts are tossed into the crowd to increase excitement and boost attendance.

Accordingly, Coomer’s claim is not foreclosed by the assumption of the risk doctrine.

The case is Coomer v. Kansas City Royals Baseball Corp., No. SC-93214 (Mo., June 24, 2014).

Craig Estlinbaum

http://lawprofessors.typepad.com/adjunctprofs/2014/06/mo.html

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