Jury Clears Mascot in Hot-Dog-Flinging Case

Kevin

from Lowering the Bar on 2015-06-24 12:30 (#C9PC)

My friend Tim, who loves baseball and whose LinkedIn picture shows him pointing to an alligator, reports that a second jury has found the Kansas City Royals and their mascot Sluggerrr not liable for Sluggerrr hitting a fan in the eye with a hot dog.

As you may recall (and if not, by all means see below), the Royals argued that the "assumption of risk" defense should apply because the mascot-powered hot-dog "toss" is now "an activity so intimately interwined with Royals baseball" that someone who goes to a Royals game assumes the risk that a guy in a lion suit will launch a dog into his eye socket. The trial judge refused to grant summary judgment, but did instruct the jury on the defense, and the jury found in the team's favor (though not necessarily because it bought that argument).

The Missouri Court of Appeal held that the instruction should not have been given because "the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game." The Missouri Supreme Court later affirmed that holding and sent the case back to the trial court, a result I accurately predicted although for some reason I don't seem to have mentioned that until now.

In the second trial, Sluggerrr (presumably not in costume, but if so, please send pictures) admitted on the stand that his boss had asked to see "more arc" on some of his throws, and also that he propelled this particular dog with a "no-look, behind the back" throw. Still, the jury ultimately found neither Sluggerrr nor the Royals were at fault (it also assigned no fault to the plaintiff).

That verdict is a little strange, since the jury would not have been instructed on assumption of risk, which is a complete defense when available. If it's not available, then the jury is supposed to assign percentages of fault (i.e. if the defendant is 10% at fault then it pays 10% of the damages) and it seems like Sluggerrr/the Royals were at least a little at fault here. A no-liability finding means that either the jury found a failure to prove proximate cause, which seems very unlikely, or that it just refused to assign any fault to the Royals, which would be effectively the same result as the rejected assumption-of-risk defense. As long as it was properly instructed, though, I think the jury is entitled to do that.

Whether for that reason or just out of sheer exhaustion, the plaintiff told the Kansas City Star that he did not intend to appeal. If he sticks to that, it would finally bring this long-running legal drama to an end.

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