Let's Be Frank: The Missouri Supreme Court Plays Ketchup With the "Assumption of the Risk" Doctrine After Baseball Spectator is Grilled With a Flying Hotdog

In an attempt to placate those individuals who relish purchasing tickets and seating themselves in the stadium seats, professional sports teams have been mixing ingredients to concoct new forms of side entertainment. Sports enthusiasts are hard pressed to attend a sporting event where mascots aren't launching T-shirts into the stands, where the "kiss-cam" isn't plastered on the Jumbotron, or where remote control blimps aren't dropping coupons.

The Kansas City Royals ("Royals") baseball team is no exception. However, little did the Royals—or any professional sports team—know that such superficial antics could land them in boiling water.

Since 2000, a "key feature" of Royals' home games has been the customary "Hotdog Launch," wherein the Royals' Mascot, "Sluggerrr," uses an air gun to shoot hotdogs into the stands. When Sluggerrr's assistants are reloading the air gun, Sluggerrr hand-tosses hotdogs to fans nearby. What seemed to be an innocent form of side entertainment for over a decade has resulted in the Missouri Supreme Court having to determine the timeless question: does hotdog throwing create risks inherent in simply watching a baseball game?

On September 8, 2009, while enjoying a Royals baseball game at Kauffman Stadium, in Kansas City, Missouri, life-long Royals' fan John Coomer ("Plaintiff") was struck in the eye by a hot dog thrown by Sluggerrr during the Hotdog Launch. As a result of the misdirected hotdog, Plaintiff suffered a detached retina and developed a cataract, necessitating multiple surgeries and an artificial lens. Plaintiff filed suit against the Royals, alleging, inter alia, causes of action sounding in negligence for the Royals' failure in exercising ordinary care, and adequately training and supervising its employees (i.e., Sluggerrr). A jury trial was subsequently conducted, and a verdict was entered assessing zero percent fault to the Royals and one hundred percent fault to Plaintiff. Steamed, Plaintiff appealed, averring jury instructional error, arguing that "the harm of getting hit with a hotdog has absolutely no relationship to going to a baseball game."

For over three decades, Missouri has operated under a pure comparative fault system, wherein any contributory fault chargeable to the plaintiff diminishes proportionately the amount awarded as compensatory damages for the injury attributable to plaintiff's contributory fault, but, does not act as a per se bar to recovery. Gustafon v. Benda, 661 S.W.2d 11 (Mo. banc 1983) (adopting comparative fault). However, it was not until John Coomer appealed the jury's verdict that the Supreme Court of Missouri addressed whether the "century-old affirmative defense commonly referred to as 'assumption of the risk'" survived Missouri's adoption of comparative fault. Coomer v. Kansas City Royals Baseball Corp., 2014 WL 2861763 (Mo. banc June 24, 2014).
In dispensing of Plaintiff's dogged appeal, the Supreme Court detailed, in length, the history of the doctrine, and the varieties of assumption of the risk.

First, the "simplest" variety and application of assumption of the risk is "express assumption of the risk:" a plaintiff makes an express statement (commonly via a waiver or release) that the plaintiff is voluntarily accepting the specified risk, thereby barring the plaintiff from recovering damages for an injury resulting from that risk. The Missouri Supreme court found that the adoption of comparative fault does not "reject or abandon 'express assumption of the risk'" because plaintiff's consent relieves the defendant of any duty to protect the plaintiff from injury. Therefore, "express assumption of the risk" is a complete—not merely a partial—bar under a comparative fault system; the defendant cannot be found negligent, and the defendant cannot be assessed "fault" by the jury.

The second variety of assumption of the risk—"implied primary assumption of the risk"—arises from the circumstances and the plaintiff's conduct: the plaintiff knows and understands the risk and proceeds anyways. Similar to the analysis the Supreme Court performed regarding "express assumption of the risk," the Supreme Court found that the adoption of comparative fault "had no effect on the continued viability of 'implied assumption of the risk.'" However, the Court found that "implied primary assumption of the risk" is not really an affirmative defense, but, rather, it indicates that the defendant did not even owe the plaintiff any duty of care. Because there was no duty on behalf of the defendant, the defendant cannot be found negligent and no "fault" can be assessed to the defendant by the jury. Therefore, "implied primary assumption of the risk" is a complete—not merely a partial—bar, even under a comparative fault scheme.

Nevertheless, under a comparative fault system, the Missouri Supreme Court held that application of "implied primary assumption of the risk" is a question of law to be decided by the court, not the jury. The Court reasoned that this is required to ensure that all "similarly situated defendants are treated equally and, more importantly, to give notice of these duties so that potential defendants will have an opportunity to adjust their conduct accordingly."

Finally, the Supreme Court addressed the third variety of assumption of the risk: "implied secondary assumption of the risk." This third variety envisions risk created by the defendant's negligence. Unlike the other two varieties of assumption of the risk, "implied secondary assumption of the risk" does not survive the adoption of comparative fault. Rather, when a plaintiff acts unreasonably in deciding to assume a risk created by the defendant's negligence, such "fault" may reduce, but not bar, the plaintiff's recovery under a comparative fault system. "By the same token, when the plaintiff's decision was reasonable, it cannot be used to reduce his recovery because reasonable behavior does not constitute 'fault[.]'" Therefore, the Missouri Supreme Court held that when a plaintiff is injured by the defendant's negligence, the adoption of comparative fault "precludes any consideration of the plaintiff's conduct in assuming the risk . . . except as a partial defense under a proper comparative fault instruction."

After alleviating the confusion created by Missouri's adoption of comparative fault and the applicability of the doctrine of "assumption of the risk," the Supreme Court took to addressing the wild hotdog that injured Plaintiff. The Court framed the issue as follows:

if Coomer was injured by a risk that is an inherent part of watching the Royals play baseball, the team had no duty to protect him and cannot be liable for his injures. But if Coomer's injuries resulted from a risk that is not an inherent part of watching baseball in person—or if the negligence of the Royals altered or increased one of these inherent risks and caused Coomer's injury—the jury is entitled to hold the Royals liable for such negligence and, to the extent the reasonableness of Coomer's actions are in dispute, the jury must apportion fault between the parties using comparative fault principles.

To the satisfaction of Missouri baseball spectators, the Missouri Supreme Court held that, as a matter of law, being injured by a hotdog is not a risk inherent in watching a baseball game, in that the risk can be increased, decreased or eliminated altogether with no impact on the game or the spectators' enjoyment of the game. Hence, the risks associated with hotdog launching are not inherent in attending a baseball game. Accordingly, it was error for the trial court to instruct the jury on "primary assumption of the risk" as it is not an affirmative defense or a jury question.

However, while the risk of being pegged with a hotdog at a baseball game is not an inherent risk, being injured by a flying hotdog at a baseball game may, nevertheless, be the fault of the injured party's unreasonableness. Here, the Supreme Court found that the trial court correctly instructed the jury on comparative fault because there was sufficient evidence for the jury to conclude that Plaintiff acted unreasonably. Specifically, the Supreme Court noted that Plaintiff watched Sluggerrr wind-up in preparation of throwing the hotdog, and at that precise moment Plaintiff "let his gaze—and attention—wander elsewhere." Therefore, the jury could conclude Plaintiff's failure to keep a "careful lookout" for flying hotdogs was sufficient to assess, at least, some fault to Plaintiff.

Ostensibly, the Supreme Court killed and revived the doctrine of "implied secondary assumption of the risk" all in the same opinion. While the terminology "implied secondary assumption of the risk" does not survive the adoption of a comparative fault system, the implications are fully alive.

Missouri baseball fans beware: the risk of hotdog throwing at a baseball game is not an inherent risk of watching a baseball game, but if you do not keep a "careful lookout" for flying hotdogs, the jury can still find you liable for your own doggone injuries caused by unruly hotdogs. And that would be the wurst.

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