Jim Porter: Take me out to the ball game – ouch!
November 14, 2013
When you go to a San Francisco Giants or Reno Aces baseball game, do you worry about being hit by a foul ball? If you are hit by a foul ball, is it just tough luck or can you successfully sue?
What if you're hit by a flying frank, a hotdog thrown by the team's mascot? Hey, I don't make this stuff up.
John Coomer was in the stands watching a Kansas City Royals game. Coomer was hit in the eye when the team's lion mascot, Sluggerrr, threw a foil-wrapped hotdog into the stands and struck Coomer's eye requiring several surgeries.
Let's be frank, is there anything he can do?
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The general "baseball rule" is a legal standard that protects teams from being sued over fan injuries caused by events on the field, court or rink. If you go to a baseball game and get hit with a foul ball, California law says you've assumed the risk of such an inherent incident.
The baseball team owner has no duty to its spectators sitting in the stands. That's the standard rule, at least if the ballpark has signs warning of foul balls and seats available in protected areas behind screening as all stadiums do.
BASEBALL VS. HOTDOG
In the Missouri hotdog case, the jury sided with the Royals saying Coomer was at fault because he wasn't paying attention. An appeals court overturned that decision and now the case is before the Missouri Supreme Court.
Coomer argues that mascots throwing hotdogs into the stands is not an integral part of the game. He did not assume that risk.
I don't for a minute buy that argument. He went to the game knowing Sluggerrr would be there and probably knowing he'd be throwing foil-wrapped wieners into the stands. Just like the Sacramento Kings mascot Slamson shoots T-shirts out of an air cannon into the stands.
A baseball game is boring enough, at least in a pitcher's dual. The sport needs some distractions … like mascots and flying dogs.
If Coomer wins his lawsuit against the Royals, then ironically a spectator would have no recourse for being hit by a foul ball at a game but could sue if hit by a wiener. Something wrong with that.
There's a 1997 California case where a baseball spectator was allowed to take his case to the jury, which by no means is a sure victory. He was hit in the face by a baseball after being distracted by a mascot named Tremor who was dressed as a dinosaur.
Tremor's tail hit the spectator in the back of the head, he turned around and when he then turned back to the game, a foul ball hit him in the face causing serious injuries.
The California Court concluded that mascots are not an essential or an integral part of playing a baseball game and let the injured fan take his case to a jury.
But hotdogs are an integral part of a baseball game. No one would go again if you couldn't eat a hotdog and garlic fries.
In light of this 1997 California case, I'm surprised sports teams still have mascots. Maybe that's why the Giants mascot Lou Seal generally hangs behind the backstop.
To impose liability on teams for the antics of their mascots would chill the sport. Some fans pay more attention to the mascot than the batter.
If you don't want to take the risk of being hit by a foul ball or a mascot's flying wiener, sit in a screened area and wear a helmet. Or stay home and watch the game on TV. I'm rooting for Sluggarrr.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at firstname.lastname@example.org or http://www.portersimon.com