This section contains the nature of the case and procedural background.

P is a longtime baseball fan and frequent spectator at D’s games. 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, P and his father left their assigned seats early in the game and moved to empty seats six rows behind the visitor's dugout. After P changed seats, Sluggerrr, the team 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 hot dogs 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 hot dogs by hand to the fans seated nearby. Sluggerrr generally tossed the hot dogs underhand while facing the fans, but sometimes throws overhand, behind his back, and side-armed. P had attended 175 Royals games before this game in September 2009. He admits that he frequently watched Sluggerrr toss hot dogs from the roof of the visitor's dugout and, on September 8, he saw Sluggerrr mount the dugout to begin the Hotdog Launch. P claims he was injured when he was hit in the eye with a hot dog thrown by Sluggerrr. P did not report this incident because he did not realize he had been injured. Two days later, P realized something 'wasn't right' with his left eye. The problem progressed until, approximately eight days after the incident, P saw a doctor and was diagnosed with a detached retina. P underwent surgeries to repair the retina and to remove a 'traumatic cataract' in the same eye. P sued D, claiming the team is responsible for Sluggerrr's negligence. D denied that Sluggerrr was negligent. D also asserted affirmative defenses of assumption of the risk and comparative fault. The jury heard testimony from another fan who claimed to have been injured by a hot dog toss from Sluggerrr under similar circumstances. Jury instructions told the jury to determine whether the risk of being injured by Sluggerrr's hotdog toss is one of the inherent risks of watching a D home game that Coomer assumed merely by attending. The jury found in favor of D, and P appeals.

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