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

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.

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

Bell v Nichols and Inman (2014) H&FLR 2014-25

Alexias Bell v Kurt Nichols and Thomas Inman (2014) H&FLR 2014-25

Tenth Texas Court of Appeals

24 April 2014

Coram: Gray CJ, Davis and Scoggins JJ

Appearing for the Appellant: Renee E. Moeller and Susan Allison Kidwell
Appearing for the First Respondent: David Bradley and Trisha Danielle Ross (both of Walters, Balido & Crain)
Appearing for the Second Respondent: Russell Chip Pelley (of Pelley Law Office) and Joe Neal Smith  

Catchwords: Texas – college football – mascot – motorcycle – punch – civil procedure – admissions – want of prosecution

Facts: Bell (appellant) was employed by Sam Houston State University to attend a football game as a mascot*.  She was being driven to a pre-game function on the front of a four-wheel motorcycle driven by Inman (second respondent).  The second respondent allegedly ran into Nichols (first respondent), the coach of the opposing team, who punched the appellant and caused her to fall off the motorcycle.  She brought proceedings against the second respondent for negligence and against the first respondent for negligence, gross negligence, assault and battery and intentional infliction of emotional distress.

The appellant’s lawyer withdrew during the proceedings and for a period of time she was unrepresented.  During this time the first respondent sent requests for admissions to the appellant.  Four of the proposed admissions were to the effect that the respondents neither harmed her nor were the proximate cause of harm to her, had not caused intentional harm to her, and acted reasonably and prudently.  She objected to these admissions and the respondents applied to the court to deem the requests admitted.

After an abortive hearing on 28 December 2012 the matter was refixed for consideration on 26 March 2013, by which time the appellant had secured new representation.  Her new lawyer amended her response to the request for admissions to deny those to which she had previously objected.  The trial court granted the respondents’ motion to deem the admissions sought and dismissed the proceedings for want of prosecution.  The appellant appealed.

Held: Allowing the appeal –

1.  A court at first instance may dismiss a case for what of prosecution based on a defendant’s motion.  If the dismissal is appealed, and the dismissal order does not state the grounds on which it was dismissed, the appellant must show that each of the grounds alleged in the motion to dismiss is insufficient to support the decision to dismiss.  Here, the motion to dismiss was based solely on the appellant’s failure to appear at the (non-)hearing on 28 December 2012 and was an abuse of discretion.

Nichols v Sedalco Construction Services, 228 SW.3d 341 (Tex. App. – Waco 2007), followed.

2.  Where a party objects to an admission, Rule 215 of the Texas Rules of Civil Procedure allows a court to consider whether the objection is justified.  If not, it shall order that an answer be served.  It is not able to deem a matter admitted because of an improper objection.

Judgment

The Court’s judgment is available here.

An appeal appears to have been lodged.

===========================================

* Known as “Airkat“.