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Editor: Christopher J. Robinette
Southwestern Law School

Monday, March 8, 2010

McCann on “Game Presentation” and Torts: The Unappreciated Dangers of Flying Hotdogs

Sluggerrr-mascot   Courts generally turn to industry standards for determining the duty owed by owners and operators of professional sports facilities to their customers.  They also find that people attending sporting events assume many risks of injury posed by on-field activities.

The classic example of those points can be found in Major League Baseball, and specifically through application of the “baseball rule” to injuries caused by foul balls.  This not-so-creatively worded rule provides that ballpark operators need only provide ordinary screening for the area around home plate and other areas where fans may be uniquely susceptible to injury.  


Even if those operators fail to provide such screening, they can still argue the affirmative defense of assumption risk—namely, that fans are aware that balls and even bats can fly into the stands during a game.  Not only should common sense encourage fans to pay attention—so the thinking goes—but the public address announcer frequently reminds them to do so.  Also, their tickets usually contain a waiver, albeit in tiny font and in legalese, on the back.


Although the baseball rule and assumption of risk doctrine do not always preclude liability for ballpark operators, they often do.  Fans injured by foul balls have a poor record suing teams and stadium operators.  For liability to arise, there normally has to be an unusual set of facts, such as view-obstructing stadium construction, that contributed to the fan’s injury.


But what about injuries caused by on-field activities that, though sponsored by the team/stadium operators, are not actually “part of the game”?  More specifically, what about injuries caused by promotional activities and entertainment that occur between play and that sometimes involve fans trying to catch an item, such as a T-shirt, launched by a stadium employee? 


If you’ve been to an NBA game recently, you know what I’m talking about it.  The NBA has a name for it: game presentation.  The basic gist of game presentation, which has become a key marketing strategy, is to entertain fans at all times during a game, including when the game isn’t being played (e.g., timeouts; stoppages in play).  For younger fans, or those with short attention spans, game presentation can be great fun; for others, it can seem distracting and stupid.  There are dance routines.  Tricks by mascots.  Circus performers who try to integrate basketball into their routine.  As someone who has been to many Boston Celtics games over the last 25 years, I can’t emphasize how different games are today from those during the Larry Bird era.  


Frequently game presentation provides opportunities for fans to receive “stuff” hoisted at them by on-field personnel.  Take the mascot.  Some teams will use its mascot to point at people seated in a particular section and then, using a slingshot or air gun, shoot an item up to those people, who will jockey for position to catch it.  It’s a seemingly harmless and fun affair, though fans sometimes push each other for the thrill of catching an item worth, at most, 10 bucks hoisted at them.  Also, there’s no real opportunity for fans sitting there to “opt out”, other than, perhaps, oddly requesting (and being able to purchase) a seat that mascots cannot reach. 


Game presentation is not unique to the NBA.  It’s also found in Major League Baseball.  And as of last week, it’s generated a torts lawsuit.  In Coomer v. Kansas City Royals, John Coomer, who was sitting six rows up from the third base dugout during a Royals game last September, became the victim of a flying hotdog.  Literally.  According to Coomer’s complaint, the Royals’ mascot, Slugger, used an air gun to shoot hotdogs into the crowd during a break in the game.  Slugger, who was standing atop the third base dugout, then put down the gun and started throwing hotdogs from behind his back, so he apparently did not know where they were going.


We all know the expression, “It’s all fun and games till someone loses an eye.”  Who would imagine that a hotdog could cause such an injury?  According to Coomer, a hotdog indeed caused him a serious eye injury.  He claims that he was a mere “few feet away” from Slugger when Slugger’s errant, behind-the-back throw led to Coomer’s left eye getting hit by a hot dog.  Coomer suffered a detached retina and other eye damage.  Coomer’s complaint doesn’t address how he could have been seated six rows up from third base yet only a “few feet” from Slugger, who was atop the third base dugout (maybe Slugger ventured up into the crowd or Coomer took a stroll down to field level, though the complaint doesn’t state so).


Coomer claims that as an invitee, he was owed the highest protection of safety, and that the Royals, through their employee—the unnamed artist performing as Slugger—failed to exhibit the requisite care.  Coomer has also filed a battery claim.


The baseball rule, which was premised on dangers from actual baseball play, arguably should not apply to game presentation, which is about entertaining when play does not occur. 


As to assumption of risk, it would seem that Coomer had some awareness of Slugger’s antics; Slugger began with an air gun and then turned to throwing.  If Coomer was indeed seated six rows up, it would seem that had he been paying attention, there was a good chance he could have reacted. 


But should fans be obligated to pay attention when the game isn’t being played?  Coomer may have bought a game ticket to watch a game, not to watch Slugger or deal with Slugger’s hot dog firing/throwing.  Put another way, should games be viewed as one event—from the first pitch to the last, from tipoff to the final buzzer—or are they really two events, one being what takes place during the actual plays, the other being what happens between plays?


- Michael McCann

Associate Professor of Law

Vermont Law School

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