Baseball fan hit in eye with hot dog can get new trial

Updated 6/26 at 9:45 a.m.

Judges are supposed to be dispassionate arbiters of the law — except, perhaps, when the subject is baseball.

In a long-awaited ruling Tuesday, the Missouri Supreme Court threw out a jury’s verdict against a Kansas City Royals fan who said he was hit in the eye with a hot dog tossed by the team’s mascot, Sluggerrr. The court said the jury had been improperly asked whether being hit by a hot dog was an “inherent risk” in watching the game.

Under the so-called “baseball rule,” sports teams generally are immune from lawsuits from fans whose injuries stem from some unavoidable part of the game. But in a 36-page opinion peppered with his obvious love of baseball, Judge Paul C. Wilson laid out — from both a judge’s and a fan’s perspective — why the concession-vending techniques of a team mascot are different from a foul ball or a thrown bat.

“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,” Wilson wrote.

The risk of being hit with a hot dog, Wilson added, was not similarly unavoidable.

“Millions of fans have watched the Royals (and its forebears in professional baseball) play the National Pastime for the better part of a century before Sluggerrr began tossing hotdogs, and millions more people watch professional baseball every year in stadiums all across this country without the benefit of such antics,” he wrote.

In September 2009, John Coomer was attending a Royals game when Sluggerrr threw a hot dog into the crowd. Coomer was hit in the eye and suffered a detached retina. He sought $200,000 at a 2010 trial in Jackson County, but the jury found Coomer 100 percent at fault for his injuries.

The jury instructions, however, had asked jurors to decide whether the hot dog toss was an inherent risk in the game. The Supreme Court’s unanimous decision, written by Wilson, said that is a legal question for courts to decide, rather than a factual matter to be left to a jury.

The court vacated the jury’s verdict. The decision allows Coomer to get a new trial, although the court said the next jury would be free to assess some portion of the fault to the plaintiff.

Coomer’s attorney, Robert W. Tormohlen, of Lewis, Rice & Fingersh in Kansas City, said that at the original trial, the Royals had argued that the hot dog tosses were a traditional part of the game.

“If the Royals or any other team is going to have its mascots throw promotional items into the stands, they have to do so in a careful and reasonable manner, which is what I thought the rule ought to be all along,” Tormohlen said in an interview.

In an email, Scott D. Hofer, of Foland, Wickens, Eisfelder, Roper & Hofer in Kansas City, who argued on behalf of the Royals, noted that the first jury had held Coomer completely at fault apart from the finding of inherent risk.

“Notably, the Supreme Court did not say the jury was wrong when it assigned Mr. Coomer 100% of the fault,” he wrote. “We don’t see how what the Supreme Court did will affect how a jury views this case.”

The Court of Appeals Western District had reached a similar, though less detailed (and less fanatic) decision last year. Once the case went to Missouri’s highest court, however, it caught the attention of sports-law attorneys around the country, who have been waiting for the decision since it was argued nine months ago.

The case prompted an article last year in American University of Business Law Review, which feared that a decision in Coomer’s favor would transform mascots into “walking (but not talking) legal liabilities.”

“As a former collegiate mascot, even I find it hard to argue that the actions of mascots are ‘essential’ to the on-field nature of a sport,” author Thomas Ahmadifar wrote. “However, that should not simultaneously squash the argument that mascots are essential to a sporting event.”

Jim Juliano, an attorney with Nicola, Gudbranson & Cooper in Cleveland, Ohio, said he thinks the case will be influential in courts nationwide. The opinion’s “unusually clear and direct” treatment of the issue draws a bright line for the application of the baseball rule, he said.

Juliano, who represents several minor-league baseball teams, said teams already have a business incentive to minimize injuries to patrons.

“In that sense, this opinion is probably not going to change a whole lot in how a team operates,” he said. But the opinion, he added, “may be cited frequently from here on in these cases where there are injuries that involve the question of an inherent risk or not an inherent risk.”

The case is Coomer v. Kansas City Royals Baseball Corp., SC93214.