John Coomer v Kansas City Royals Baseball Corporation (2014) H&FLR 2014-41

Supreme Court of Missouri

24 June 2014

Coram: Court en banc (Judgment by Wilson J)

Appearing for the Appellant: Robert Tormohlen (of Lewis, Rice & Fingersh)
Appearing for the Respondent: Scott D. Hofer (of Foland, Wickens, Eisfelder, Roper & Hofer, PC )

Catchwords: Missouri – baseball – mascot – hotdog toss – baseball rule – injury – negligence – assumption of risk – inherent risk

Facts: On 8 September 2009 the plaintiff attended a baseball game at Kauffman Stadium between the Kansas City Royals and the Detroit Tigers. Since 2000 a feature of Royals’ home games has been the practice of their mascott (“Sluggerrr“)* tossing hotdogs to members of the crowd. The plaintiff saw Sluggerrr commence throwing hotdogs. He turned to look at the scoreboard and at that moment was hit in the face by a hotdog, causing injury to his left eye.

He commenced proceedings against the defendant alleging negligence and battery. A jury in the trial court returned a finding of no negligence: Coomer v Kansas City Royals Baseball Corporation (2011), The Pitch Blog, 9 March 2011. The plaintiff appealed.

Held: Allowing the appeal –

1. An implied primary assumption of risk by a plaintiff can be identified from their conduct and the surrounding circumstances, including whether a risk is inherent to the activity. Where this has occurred, a plaintiff who knowingly and voluntarily encounters that risk is barred from seeking compensation for resulting injuries. This defence is not affected by the acceptance in law of the principle of comparative fault

Krause v US Truck Co Inc, 787 SW.2d 708 (Mo. 1990), followed.
Gustafson v Benda, 661 SW.2d 11 (Mo. 1983), considered.

2. The “baseball rule”, whereby a ballpark owner is not considered negligent for failing to protect all seats in the park with wire netting and failing to warn a plaintiff about obvious hazards incidental to baseball, is an example of the principle of applied primary assumption of risk.**

Hudson v Kansas City Baseball Club, 164 SW.2d 318 (Mo. 1942); Anderson v Kansas City Baseball Club, 231 SW.2d 170 (Mo. 1950), considered.

3. Where a plaintiff’s injury results from a risk that is not an inherent part of watching baseball, or if the defendant’s negligence has increased the inherent risks and caused the injury, negligence may be found.

Lowe v California League of Professional Baseball, 56 Cal.App.4th 112 (1997), followed.

4. Whether a risk is ‘inherent’ for the purposes of implied primary assumption of risk is a question of law and not of fact. A risk is inherent if it is so intertwined with the relevant activity that it cannot be controlled or limited without abandoning the activity altogether. In this case the risk if injury from the ‘hotdog toss’ was not an inherent part of watching the Royals play baseball, and a risk which the plaintiff assumed by attending the game.

Loughran v The Phillies, 888 A.2d 872 (Pa. 2005); Cohen v Stirling Mets LP, 17 Misc.3d 218 (NY Sup. Ct. 2007), distinguished.

Judgment

The Court’s judgment is available here.

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* Properly, one John Byron Shores.
** South Shore Baseball LLC v DeJesus (2014) H&FLR 2014-39.