On Point News reports that a Missouri judge has refused to dismiss a claim against the Kansas City Royals by a man who alleges the Royals' mascot, Sluggerrr, hit him with a hot dog in 2009. See "Dog-Flinging Mascot Blamed for Eye Injury," Lowering the Bar (Feb. 24, 2010). John Coomer alleges that Sluggerrr negligently flung a dog into his eye from just six rows away, and that he suffered a detached retina as a result.

As I correctly predicted last year (proving that you should hire me for your next case involving a rampaging sports mascot), the main legal issue was whether the "assumption of risk" defense would apply. Had Coomer been hit by a foul ball, case dismissed. The Royals argued this should also apply to "customary activities" associated with a sport, in this case the flinging of hot dogs.

There is no question that the "Hotdog Toss" (note: "hot dog" is two words, and the National Hot Dog and Sausage Council will back me up on that) is such an activity, the Royals argued in a motion for summary judgment. Indeed, they wrote, "[i]t is simply undeniable that the Hotdog [sic] Toss is an activity so intimately intertwined with Royals baseball that one who attends a Royals game assumes the risk associated with the Hotdog [sic] toss." But when a brief describes something as "undeniable," it usually isn't, and that was the case here.

The plaintiff conceded that he would have assumed the risk of being hit by a ball or broken bat, because those risks are inherent to baseball. "However," he wrote, "harm resulting from a team mascot negligently or recklessly smacking spectators in the face with hotdogs [sic] is not such a [risk]." The defense doesn't apply if a defendant negligently increases or creates a risk, and, said the plaintiff, "the risk involved here is that of one of Defendant's employees, dressed in a heavy lion's costume, flinging a foil-wrapped hotdog [sic] at high speed directly at a spectator . . . while using an around-the-back throwing method which concealed the release of the projectile."

The plaintiff cited a California case in which one team's mascot, a seven-foot-tall dinosaur, had poked a spectator with his tail, distracting him just when a foul ball happened to be coming his way. That court held the dinosaur-poking was not an integral part of the game, and plaintiff argued that neither is hot-dog flinging.  Plaintiff also contended that if the defendant was right, then Sluggerrr would be free to fire hot dogs out of an air cannon "directly at someone's ten-year-old daughter sitting in the first row."

Whether the court was concerned about Sluggerrr's future intentions toward the ten-year-olds of Kansas City or not, it agreed with the plaintiff. Even if the activity was customary, the court held, there was an issue of fact as to whether the lion acted negligently in carrying it out. The court did dismiss a claim for battery, finding no evidence that Sluggerrr had smacked Plaintiff in the face intentionally.

The case can now move toward trial, or, more likely, settlement.