File this one under “Things that sound stupid but really aren’t.” You may have heard of the personal injury lawsuit by a KC Royals fan who was hit in the eye with a hot dog. He sued the team because their mascot threw the hot dog as part of their regular “hot dog toss” they use as a fan attraction.
At stake is something called the “baseball rule” that says if you get injured by something that is part of the game – like a foul ball or broken bat – then you cannot sue for your personal injury. Maryland has a very similar, but much broader law that would apply in this situation. Maryland says you cannot sue if you “assumed the risk” of your injuries. Getting hit in the eye by a baseball is a risk you would assume by going to the game. But so is walking on an icy sidewalk. Maryland’s assumption of the risk doctrine has been used to deny a lot of personal injury lawsuits in various situations.
The question in this case is: Is the hot dog toss by the team mascot considered a part of the game, and therefore covered by the baseball rule just like a foul ball would be? Both sides agree that if a foul ball hit the man, he could not sue for his injury. But what about a hot dog tossed by the team mascot – allegedly a behind the back throw too! The Missouri Supreme Court will decide that issue.
The facts: The KC Royals mascot regularly tosses hot dogs into the stands for lucky fans to grab and eat. During the “hot dog toss” one night, John Coomer got hit in the eye. He had $4800 in medical bills and permanent eyesight loss after two surgeries for his detached retina. There is no doubt he was seriously injured.
The team argues that the hot dog toss is a much a part of their games as a foul ball. The fans expect it and Coomer should have expected it. Allegedly, he was not paying attention when the hot dog was thrown. The jury found that he should have been paying attention and they denied his case. But that finding was overturned on appeal by the first level appellate court that said the baseball rule should not apply to a hot dog since it is not “part of the game.” Apparently this is a ground breaking case because no case has decided the duty a mascot owes to fans during a game. Previous courts have said mascot antics are not an integral part of the game, but this is the first time someone is saying a mascot owes a duty of care to fans. These cases are often cited as precedent in other cases, so it could have widespread impact beyond the state of Missouri.
Stay tuned to see what the Missouri Supreme Court does. And if you are interested in the history and application of the baseball rule, here is an excellent link explaining the law in detail.