(CN) – The Kansas City Royals must face a lawsuit from a fan who was hit in the eye by a hot dog thrown by the team mascot, a Missouri appeals court ruled.
John C. Coomer went to a Royals baseball game in September 2009 with his father. After the third inning, the team’s crown-topped lion mascot, “Sluggerrr,” came out for the Hot Dog Launch.
Twenty to 30 hot dogs are thrown to fans or launched from an air gun in the spectacle.
John Byron Shores, who portrays Sluggerrr, testified that the Hot Dog Launch has been going on since 2000.
The jury watched a video of Sluggerrr tossing foil-wrapped hot dogs to fans, including behind-the-back and over-the-shoulder tosses.
Coomer testified that he while he was looking at the scoreboard, a hot dog hit him in the face, knocking off his hat.
Two days later, Coomer was diagnosed with a detached retina. He underwent surgery for that and again for a cataract, and now has an artificial lens in that eye. He sued the team for negligence and battery in 2010.
The trial court ruled that Coomer was 100 percent at fault for the accident.
But the Kansas City-based Western District of the Missouri Court of Appeals overturned the decision and remanded the case for trial.
“The issue is thus whether the risk Mr. Coomer encountered was one which inhered in the game, or one which would be created by the defendant’s negligence,” Judge Thomas Newton wrote for the court.
“Mr. Coomer argues that the trial court erred in submitting the defense (of primary implied assumption of risk) to the jury because ‘the risks created by a mascot throwing promotional items do not arise from the inherent nature of a baseball game. On these facts, we agree.”
Newton rejected the Royals’ argument that since Coomer had attended about 175 Royals games at Kaufmann Stadium, he was familiar with the Hot Dog Launch.
“That the launch was a customary activity, however, does not equate to a patron’s consent to the risks of being hit by a promotional item. Inherent risks are those that are inure in the nature of the sport itself,” the judge wrote.