Coomer v. Kansas City Royals Baseball Corporation

437 S.W.3d 184 (2014)

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Nature of the Case

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Facts

P brought his father along to watch D's host the Detroit Tigers. Only about 12,000 people were on hand to watch the game because it had rained most of the day. With such a small crowd, D and his father left their assigned seats early in the game and moved to empty seats six rows behind the visitor's dugout. Sluggerrr, D's mascot, mounted the visitor's dugout to begin the 'Hotdog Launch,' a feature of every Royals home game since 2000. The launch occurs between innings when Sluggerrr uses an air gun to shoot hotdogs from the roof of the visitor's dugout to fans seated beyond hand-tossing range. When his assistants are reloading the air gun, Sluggerrr tosses hotdogs by hand to the fans seated nearby. Sluggerrr generally tossed the hotdogs underhand while facing the fans but sometimes throws overhand, behind his back, and side-armed. P and his father were seated approximately 15 to 20 feet from Sluggerrr, directly in his view. Sluggerrr began to toss hotdogs by hand to fans. P looked at the scoreboard for a moment. P admits he never saw Sluggerrr throw the hotdog that he claims injured him. P described the blow as 'pretty forceful.' P did not realize he was injured. The next day P something 'wasn't right' with his left eye. Approximately eight days after the incident, Coomer saw a doctor and was diagnosed with a detached retina. Coomer underwent surgeries to repair the retina and to remove a 'traumatic cataract' in the same eye. P reported his injury to D eight days after it occurred. P sued D for negligence and one count of battery. D admitted responsibility for Sluggerrr's acts but denied he had been negligent. D also asserted affirmative defenses of assumption of the risk and comparative fault. P argued that implied primary assumption of the risk 'only applies to risks that are inherent in the nature of the activity' and, in this case, 'the harm of getting hit with a hotdog has absolutely no relationship to going to a baseball game.' D got the verdict. P appealed.