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Although most media attention focuses on the United States Supreme Court’s opinions addressing constitutional issues, the vast majority of law that affects people’s day-to-day lives is decided by state courts. Accordingly, this post represents the first in a hopefully extensive category of posts examining interesting, important, or just incredible state court opinions.
The Missouri Supreme Court has decided that a fan injured by a hotdog thrown by the Kansas City Royals’ mascot Sluggerrr can sue for compensation.
The opinion focused on what is called the “assumption of risk doctrine,” assessing whether the injury claimed is a normal and expected part of an activity that the plaintiff chose to participate in. So, for example, when a person chooses to go hiking on another person’s property, he might not be able to sue for an ankle sprain suffered when he slipped going down a gully because he “assumed the risk” of rough or slippery terrain by choosing to go hiking.
Using romantic language, the Missouri Supreme Court said that getting hit by a baseball or by a bat would be a risk assumed by someone attending a baseball game:
[T]his Court has held that spectators cannot sue a baseball team for injuries caused when a ball or bat enters the stands. 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.
But, the court said, a hotdog toss is different:
The risk of being injured by Sluggerrr’s hotdog toss, on the other hand, is not an unavoidable part of watching the Royals play baseball. That risk 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.
Leaving aside the fact that Sluggerrr appears to have a better fastball than most of the Royals’ pitching lineup, the effects of a decision like this could be sad. While the claim may seem silly (and unlikely to win a jury’s sympathy), it is an example of continuing growth in lawsuits that tend to strip away whimsical fun and reduce everything to sterile “safe” entertainment that risks nothing outside of the boring boundaries set by hypervigilant safety monitors. Rather than face the expense of even unlikely-to-succeed lawsuits, most companies will choose to avoid anything that the courts have said can serve as the basis for any lawsuit. A look at the plaintiff’s claims shows how transforming harmless fun into a deadly threat works:
Coomer asserted that the Royals (through its employee, Sluggerrr) failed to exercise ordinary care in throwing hotdogs into the stands, that the team failed to adequately train Sluggerrr on how to throw hotdogs into the stand safely, and that the team failed to adequately supervise Sluggerrr’s hotdog toss.
The facts section of the opinion makes clear that the plaintiff attended dozens if not hundreds of games, so he would have known that the hotdog toss is a routine (albeit ancillary) part of the events. How he can claim that he didn’t assume the risk of getting hit by a hotdog is at best unclear. But the court found that the doctrine doesn’t apply, so he gets another chance to hit the legal lottery.
So the hotdog toss may wind up going the way of lawn darts, a casualty of the dreary combination of hypersensitive people, “safety advocates” who seek to eliminate every infinitesimal risk, and tort lawyers who are all too happy to mine deep pockets for fees. A personal-injury legal system designed to compensate people for acts of real negligence is too easily transformed into a tool to simply cash in on any injury, no matter how small, unusual, or unintentional.
And heaven help those teams that actually use an compressed-air cannon to throw their hotdogs or t-shirts. The anti-gun advocates will probably file an amicus brief and someone will compare it to Newtown.
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.