Are those fan-friendly mascots a liability?

By Joshua Winneker

and David Gargone

It is almost as American as the game of baseball itself: The between-inning antics of friendly mascots and team employees engaging fans by tossing - or even shooting - hot dogs, T-shirts, and other merchandise into the awaiting arms of fans in the stands. That experience and other game-day activities, though, may have received a called third strike from a recent Missouri Supreme Court ruling.

We fans have come to expect balls - and sometimes bats - flying into the stands at a baseball game. Catching a foul ball and taking it home as a souvenir is a highlight of any fan's experience. On the flip side, fans have been hurt at games. In the rare instances when they sue over an injury, typically they lose their lawsuits because they "assumed the risk" that is inherent to the game, such as getting hit by a line drive or an errant bat.

What happens, though, when that flying object is something else, like a hot dog or a rolled-up T-shirt? Will that injured fan also fall victim to the assumption-of-risk defense? Well, that question was recently answered by the Missouri Supreme Court.

Sluggerrr is the mascot for Major League Baseball's Kansas City Royals. Since 2000, this mascot has been armed with the "Hotdog Launch," which allows the fun-loving mascot to toss wrapped hot dogs into the stands between innings at Royals' home games. The Royals throw 20 to 30 hot dogs into the stands each game, either through an air gun or by hand.

On one fateful game day, Sluggerrr did a behind-the-back toss and hit fan John Coomer in the eye, causing serious injuries that required multiple surgeries. Coomer filed a lawsuit for his damages against the Royals, Sluggerrr's employer. (Employers can be held accountable for the unlawful conduct of their employees through a doctrine called "vicarious liability.") Following the lawsuit, the employee acting as Sluggerrr was fired and a new Sluggerrr was hired and then trained by Philadelphia's famed Phillie Phanatic.

Coomer initially lost at the trial-court level because the jury believed the injury was Coomer's fault. He did, however, win at the intermediate appellate level because that court found flying hot dogs were not inherent to the game of baseball and, therefore, Coomer could not have assumed the risk of injury caused by them. The Royals appealed the ruling to the Missouri Supreme Court and lost.

The Missouri Supreme Court was faced with an issue that could affect the way teams and their mascots interact at games going forward. On the one hand, if a mascot interacts with the fans by throwing merchandise or food into the stands, fans really enjoy the interaction and it brings something additional to the pleasure of watching a game.

The team, though, will be forced to alter that previously enjoyable aspect of the game if that fan interaction can cause liability imputed to the teams through the actions of their mascots. The question then becomes whether or not mascot antics are inherent to the game of baseball, such that a fan coming to the game assumes the risks of injury associated with those antics.

Normally, would you ever believe that getting hit with a wrapped hot dog would be inherent to the game? Probably not, but in Kansas City this activity was a part of every home game for 14 years.

At the end of the day, the Missouri Supreme Court ruled that Coomer did not assume the risk of being injured by a hot dog when he went to the Royals game. The court then remanded the case back to the trial court and allowed Coomer to have a retrial.

With this ruling, the message now has been sent to all mascots and teams that they may be liable for any injuries fans suffer because of their actions at games. Although this decision was in Missouri, it remains to be seen what the reaction will be around the league and whether the pleasurable fan experiences with mascots will come to a screeching halt.

Soon we'll learn what's more important to the teams: some light fun in between innings for the fans or protecting their bank accounts against potential lawsuits?