The (hot) dog days of summer: Missouri's "baseball rule" takes a strike.

• Author: Freeman, Ross H.

Coomerv. Kansas City Royals Baseball Corp., 437 S.W.3d 184 (Mo. 2014) (en banc).

1. INTRODUCTION

   In 2014, over 73 million Americans attended Major League Baseball ("MLB") games. (1) That averages to around 30,458 fans per game. (2) In baseball, a sport where a 100 M.P.H. pitch can result in a screaming foul ball into the stands, there are surprisingly few lawsuits that are successfully brought against MLB teams. This is not because there are no injuries, (3) but because of the so-called "baseball rule" and the protections that it provides MLB teams. (4) The baseball rule can be summarized as an application of primary implied assumption of risk--a defense to negligence that limits the liability of a ballpark owner by eliminating a duty owed to the spectators, as long as the spectators in the most dangerous seats (in terms of inherent risks of the sport of baseball) are protected by fencing or netting. (5)

   In 2014, the Supreme Court of Missouri declined to extend liability protection to the Kansas City Royals to cover the antics of the team's mascot. (6) On September 8, 2009, John Coomer was hit in the eye by a hotdog errantly thrown by the Kansas City Royals' mascot, Sluggerrr. (7) Following a trial court verdict for the Kansas City Royals, the Missouri Court of Appeals for the Western District reversed the trial court's ruling. (8) On transfer to the Supreme Court of Missouri, the Supreme Court of Missouri affirmed the Missouri Court of Appeals for the Western District, which had reversed the trial court's verdict for the Royals. (9)

   Part II of this Note provides the facts and holding of Coomer. Part III discusses the legal background of Coomer, including the adoption of comparative negligence in Missouri, Missouri's baseball rule, and other persuasive baseball rule authority the court used in Coomer. Part IV analyzes the court's application of the law to the specific facts in Coomer. Finally, Part V discusses the court's decision and explains why the court should have adopted a broader definition of what constitutes an "inherent risk" of attending an MLB game in person.

2. FACTS AND HOLDING

   John Coomer was an ardent Kansas City Royals fan. (10) Coomer estimated he had been to 175 Royals home games before attending the game on September 8, 2009. (11) Coomer also admitted that he frequently watched Sluggerrr's hotdog launch between innings. (12) On September 8, 2009, Coomer and his father attended the Kansas City Royals baseball game against the Detroit Tigers. (13) There was a smaller attendance than usual, so the Coomers chose to leave their seats to move to empty seats six rows behind the Tigers' dugout. (14) Shortly after the Coomers arrived at their new seats, Sluggerrr, the Royals' mascot, started the "hotdog launch," which has been a feature of every Royals home game since 2000. (15)

   The hotdog launch consists of placing hotdogs, wrapped in bubble wrap, into an air gun and then shooting the hotdogs to eager fans who are rows away. (16) While the air gun is being reloaded, Sluggerrr generally hand-tosses hotdogs, wrapped in foil, to fans within throwing distance. (17) Sluggerrr uses multiple tossing motions, including behind-the-back tosses to lucky fans. (18)

   On this specific occurrence of the hotdog launch, Coomer was within throwing distance of Sluggerrr. (19) Coomer testified that many fans around him were cheering and yelling for Sluggerrr to toss them a succulent sausage. (20) Coomer saw Sluggerrr turn his back and make a motion with his arm behind his back, signaling a likely behind-the-back-throw, but then briefly looked away to the scoreboard. (21) During that brief moment, Sluggerrr had tossed a hotdog to Coomer, or to his general area, that squarely hit Coomer in the face, knocking off his hat. (22) The velocity of the throw made Coomer believe that it was an overhand throw, rather than the gentler underhand throws that Sluggerrr had allegedly used that day. (23) Showing his dedication, Coomer stayed for the remainder of the game and even attended the next night's game. (24)

   Two days later, he started to believe something "wasn't right" with his right eye. (25) Eight days after the incident, Coomer went to a doctor and was diagnosed with a detached retina that required several surgeries to repair. (26) Coomer was also diagnosed with a traumatic cataract in the same eye, which also required surgery to repair. (27) Coomer gave the Royals notice of the injury on the same day he visited the doctor and eventually filed suit against the Royals in February 2010 in the Jackson County Circuit Court, alleging battery and negligence. (28)

   In his initial suit, Coomer contended that the Royals "failed to exercise ordinary care through its agents, and failed to adequately train and supervise its agents." (29) The Royals' answer asserted the defenses of implied primary and secondary assumption of the risk. (30) At the close of Coomer's evidence at trial, the Royals admitted that the employee portraying Sluggerrr "was its agent, servant, and/or employee and that he was acting in the scope and course of his employment." (31) Coomer then moved for a directed verdict as to the Royals' defenses, which the trial court denied. (32) The court also denied several of Coomer's objections pertaining to jury instructions. (33) The jury returned a verdict in favor of the Royals, placing 0% of the fault on the Royals and 100% of the fault on Coomer. (34) From the denial of his motion for a new trial, Coomer appealed the trial court's decision. (35)

   On appeal, Coomer claimed instructional error as well as error by the trial court in denying his directed verdict as to the Royals' defenses. (36) Coomer argued four points before the Court of Appeals for the Western District. (37) First, he argued that the trial court erred in its jury instruction on the Royals' defense of primary implied assumption of risk. (38) His second argument was that "even if primary implied assumption of risk was available to the Royals as a defense, the trial court erred because as submitted to the jury, the instruction was an incorrect statement of law." (39) Third, he argued that the trial court erred in "permitting and instructing the jury on the Royals' defense of comparative fault (secondary implied assumption of risk)." (40) Finally, Coomer contended that the "trial court erred in refusing to instruct the jury on his claims for negligent supervision and training." (41)

   As to Coomer's first point, that a mascot throwing hotdogs at fans is not an inherent or unavoidable risk of playing baseball, the appellate court reversed the trial court, finding that the trial court erred in instructing the jury on implied assumption of risk. (42) The appellate court explained that inherent risks of an activity are "perfectly obvious or fully comprehended" and represent dangers that are "known and appreciated." (43) The instruction to the jury, concerning whether a hotdog thrown by a mascot was an inherent risk of watching a Royals home game, was in error because that is a question for the court, not for the jury. (44) Coomer's second point was rendered moot, and the appellate court declared that the trial court did not err in Coomer's third and fourth points. (45) The comparative fault jury instruction (point three) and the negligent supervision and training instruction (point four) are not included in this Note, as the Court of Appeals ruled the trial court did not err in these specific instructions. (46)

   The case was then transferred to the Supreme Court of Missouri. (47) That court held, as a matter of law, that "the risk of being injured by Sluggerrr's hotdog toss is not one of the inherent risks of watching a Royals home game." (48) The court focused on the fact that baseball can be played without tossing hotdogs to fans, stating that "[t]he risk of being injured by Sluggerrr's hotdog toss ... is not an unavoidable part of watching the Royals play baseball." (49) The court went on to say that the risk of being hit by a hotdog thrown by a mascot is no more inherent in watching a game of baseball than it is inherent in "watching a rock concert, a monster truck rally, or any other assemblage where free food or T-shirts are tossed into the crowd to increase excitement and boost attendance." (50)

   The court, in deciding to vacate the judgment for the Royals, determined that Coomer's claim was not barred by the assumption of risk doctrine and that it was up to the jury to decide (1) whether Sluggerrr injured Coomer with the thrown hotdog and (2) whether Sluggerrr was negligent in doing so. (51)

   As discussed below, the "baseball rule" is an application of the implied primary assumption of risk doctrine, specialized for the MLB and other sporting events. (52) The court, in vacating the judgment for the Royals, declined to extend the protection of the baseball rule to other events within the stadium, such as antics by a mascot. (53) Thus, the court further narrowed the baseball rule to only cover risks of injury that are inherent dangers of watching the sport of baseball in person. (54) The Supreme Court of Missouri, in vacating the judgment for the Royals and remanding the case for further proceedings, held: (1) that the question of whether being hit by a thrown hotdog is an inherent risk of attending a baseball game was a decision for the court and not the jury, (2) that being hit by a hotdog is not an inherent risk of attending a baseball game, (3) that the jury instructions requiring the jury to determine if it was an inherent risk were prejudicial towards Coomer, and (4) that the issue of comparative fault was a question for the jury. (55) When a team's mascot injures a spectator at a baseball game, the baseball rule does not preclude damages for the fan's injury if the team's mascot acted negligently. (56)

3. LEGAL BACKGROUND

   1. Comparative Fault in Missouri: Gustafson v. Benda

      In 1983, the Supreme Court of Missouri adopted the comparative fault...