06/27/2014 03:40 pm ET Updated Aug 27, 2014

Assumption of the Risk at the Ballpark

The Missouri Supreme Court recently held that the Kansas City Royals could not use assumption of the risk as a complete defense against liability in a lawsuit for injuries caused by a hotdog tossed into the stands by the team mascot, Sluggerrr (Coomer v. Kansas City Royals). The plaintiff suffered a detached retina when he was allegedly hit in the eye by the hotdog. Assumption of the risk involves a voluntary consent to accept the danger of a known and appreciated risk. Consequently, it prevents a lawsuit against another for failing to protect the injured individual from the risk. What risks does a baseball spectator assume at the ballpark?

The Missouri Supreme Court discussed spectator injuries in the context of an assumption of the risk in the following summarized manner. Since rarely does an individual specifically state that she assumes the risk, it is typically inferred by her conduct and the surrounding circumstances. If the risk in question arises from the inherent nature of an activity, such as a hit baseball, assumption of this inherent risk prevents any recovery for injuries. However, if the risk is created by negligence (unreasonable conduct under the circumstances) then some recovery for the injury is possible.

The so-called "Baseball Rule" states that it is not necessary to screen all the stadium seats from flying baseballs. If a fan chooses to sit in an unscreened section when screened seating is available, he assumes the risk of being hit by a baseball or a flying bat. Courts are unwilling in the interest of spectator safety to change the rules or nature of baseball or completely isolate the spectators from any closeness to the game.

When an injury is not inherent in the game, an analysis of negligence must be undertaken. A hotdog toss is not inherent to a baseball game. Thus a jury is entitled to weigh the evidence and allocate negligence comparatively between the mascot who threw the hotdog and the fan. At a retrial, the jury might impose all the responsibility (negligent conduct) for the injury on either the mascot or the fan or divide it between the two parties in a percentage manner.

While a lawsuit concerning a hotdog may appear amusing or frivolous, the injury in question appears to be quite serious. The mascot's "Hotdog Launce" sometimes used an air gun and sometimes was done by hand. In essence, a jury is entitled to decide whether or not the hotdog caused the injury and, if so, whether the mascot was negligent. A jury might conclude that the spectator should have been more attentive and that there is no liability on the part of the Royals. In any event, attending a baseball game does not mean that the spectator assumes the risk of injury from anything and everything thrown into the stands in all circumstances.