Coomer v. Kansas City Royals Baseball Corp.

Supreme Court of Missouri · Torts

TortsNegligenceAssumption of RiskComparative FaultSports Spectator InjuriesJury Instructionsassumption of riskimplied primary assumption of risk

Facts

Coomer, a frequent Royals spectator, moved to seats about 15 to 20 feet from the visitor's dugout during a sparsely attended game and watched Sluggerrr begin the Royals' between-innings Hotdog Launch. Coomer had often seen Sluggerrr toss hotdogs before and saw Sluggerrr appear to prepare for a behind-the-back throw, but Coomer turned to look at the scoreboard and did not see the throw that he claimed struck him in the face. Days later he was diagnosed with a detached retina and sued the Royals for negligence and battery. The Royals admitted responsibility for Sluggerrr's acts but denied negligence and asserted assumption of the risk and comparative fault.

Issue

Whether the risk of being injured by a mascot's hotdog toss is an inherent risk of attending a Royals baseball game such that implied primary assumption of the risk bars recovery, and whether that question was properly submitted to the jury. Also, whether Coomer's conduct could be submitted to the jury under comparative fault.

Rule

After Gustafson, implied secondary assumption of the risk does not survive as a complete bar and may be considered only through comparative fault when the plaintiff unreasonably encounters a risk created by the defendant's negligence. Express assumption of the risk and implied primary assumption of the risk remain because they negate duty, but implied primary assumption of the risk is a question of law for the court, not a question for the jury. A risk is inherent only when it is structural to or part of the essential character of the activity such that the defendant cannot remove it without materially altering the activity or the spectators' enjoyment of it.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a minor league baseball game in Tulsa, the home team's mascot climbed onto the dugout between innings and tossed wrapped sandwiches into nearby seats as part of a promotion. One sandwich struck Dana Ruiz in the face, and the team argues that because the toss is a longtime part of the ballpark atmosphere, Dana assumed that risk merely by attending.

How should a court rule on the team's argument?

Explanation. The majority held that implied primary assumption of the risk survives comparative fault only as a no-duty doctrine for risks inherent in the activity. A risk is inherent only if it is structural to the activity's essential character and cannot be removed without materially altering the sport or spectator enjoyment. Promotional tosses by mascots can be increased, reduced, or eliminated without changing baseball itself, so the team still owes reasonable care.