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Coomer v. Kansas City Royals Baseball Corp.

Supreme Court of Missouri, En Banc

June 24, 2014

JOHN COOMER, Appellant,

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Paul C. Wilson, Judge. All concur.


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Paul C. Wilson, Judge.

John Coomer claims he was injured when he was hit in the eye with a hotdog thrown by Sluggerrr, the Kansas City Royals mascot. Coomer sued the Kansas City Royals Baseball Corporation, claiming the team is responsible for Sluggerrr's negligence and the damages it caused. A jury found in favor of the Royals, and Coomer appeals. Among the jury instructions was one asking the jury to decide whether the risk of being injured by Sluggerrr's hotdog toss is one of the inherent risks of watching a Royals home game that Coomer assumed merely by attending. Whether a particular risk is inherent in watching a sporting event is a question of law for the court, not a question of fact for the jury. This Court holds that the risk of being injured by Sluggerrr's hotdog toss is not one of the inherent risks of watching a Royals home game.

In the past, this Court has held that spectators cannot sue a baseball team for injuries caused when a ball or bat enters the stands. Such risks are an unavoidable -- even desirable -- part of the joy that comes with being close enough to the Great American Pastime to smell the new-mown grass, to hear the crack of 42 inches of solid ash meeting a 95-mph fastball, or to watch a diving third baseman turn a heart-rending triple into a soul-soaring double-play. The risk of being injured by Sluggerrr's hotdog toss, on the other hand, is not an unavoidable part of watching the Royals play baseball. That risk is no more inherent in watching a game of baseball than it is inherent in watching a rock concert, a monster truck rally, or any other assemblage where free food or T-shirts are tossed into the crowd to increase excitement and boost attendance.

Accordingly, Coomer's claim is not foreclosed by the assumption of the risk doctrine. Instead, it is up to the jury to decide: (1) whether Sluggerrr injured Coomer by hitting him with a hotdog, and (2) whether Sluggerrr was negligent in doing so. If so, the jury is entitled to hold the Royals liable for Coomer's damages, and the jury is entitled to reduce those damages by whatever percentage of fault the evidence shows should be assessed to Coomer. Because the jury instructions given below introduced an improper consideration into this otherwise ordinary analysis, the Court vacates the judgment in favor of the Royals and remands this case.


Coomer is a longtime baseball fan and frequent spectator at Royals games in Kauffman Stadium. On September 8, 2009, he brought his father along to watch the Royals 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, Coomer and his father left their assigned seats early in the game and moved to empty seats six rows behind the visitor's dugout.

Shortly after Coomer changed seats, Sluggerrr 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.

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Coomer estimates that he attended 175 Royals games before this game in September 2009. He admits that he frequently watched Sluggerrr toss hotdogs from the roof of the visitor's dugout and, on September 8, he saw Sluggerrr mount the dugout to begin the Hotdog Launch. Coomer and his father were seated approximately 15 to 20 feet from Sluggerrr, directly in his view. After employing his hotdog-shaped airgun to send hotdogs to distant fans, Sluggerrr began to toss hotdogs by hand to fans seated near Coomer. Coomer testified that he saw Sluggerrr turn away from the crowd as if to prepare for a behind-the-back throw, but, because Coomer chose that moment to turn and look at the scoreboard, he admits he never saw Sluggerrr throw the hotdog that he claims injured him. Coomer testified only that a " split second later ... something hit me in the face," and he described the blow as " pretty forceful."

Coomer did not report this incident to the Royals when it happened because he did not realize he had been injured. Instead, he stayed for most of the rest of Tuesday's game (a thrilling 7-5 effort that snapped the first-place Tigers' six-game winning streak) and even returned to Kauffmann Stadium the following night to witness the Royals' further 5-1 drubbing of the Tigers. Thursday morning, however, Coomer felt he was " seeing differently" and something " wasn't right" with his left eye. The problem progressed until, 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.

Coomer reported his injury to the Royals in September 2009, eight days after it occurred. In February 2010, Coomer filed this lawsuit alleging one count of negligence and one count of battery.[1] Regarding the negligence count, Coomer asserted that the Royals (through its employee, Sluggerrr) failed to exercise ordinary care in throwing hotdogs into the stands, that the team failed to adequately train Sluggerrr on how to throw hotdogs into the stand safely, and that the team failed to adequately supervise Sluggerrr's hotdog toss. In its answer, the Royals admitted responsibility for Sluggerrr's acts but denied he had been negligent. The Royals also asserted affirmative defenses of assumption of the risk and comparative fault.

The Royals employee who portrays Sluggerrr testified at trial he did not remember the throw that allegedly injured Coomer. He admitted that the Royals had given him no specific training on how to toss hotdogs, but testified that he was aware that fans could be hurt and that he was careful in making his tosses. For example, when a fan is seated nearby, Sluggerrr said he tries to make eye contact before tossing a hotdog so that the fan will know it is coming and -- if the fan is seated near enough -- tries to throw the hotdog in an arc to make it easier to catch. In addition to hearing Sluggerrr's testimony and Coomer's description of the incident, the jury heard testimony from another fan who claimed to have been injured by a hotdog toss from Sluggerrr under similar circumstances.

At the close of the evidence, Coomer moved for a directed verdict on the issues of comparative fault and assumption of the risk. He argued that implied primary assumption of the risk " only applies to risks

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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." Regarding comparative fault, Coomer argued that, as a matter of law, he cannot have been negligent merely for not fleeing his seat during the Hotdog Launch. The trial court overruled Coomer's motion, holding that both (a) whether the risk of being injured by Sluggerrr's hotdog toss is one of the risks inherent in watching a Royals game and (b) the reasonableness of Coomer's actions were proper questions for the jury.

In preparing the jury instructions, the Royals proposed adding a " tail" to Instruction No. 9 (i.e., the verdict director for Coomer's negligence claim). This tail directs the jury to Instruction No. 11, which asks the jury to decide whether injury from Sluggerrr's hotdog toss is an inherent risk of watching the Royals play baseball. The Royals' proposed instructions, as given, read:

Instruction No. 9
In your verdict you must assess a percentage of fault to the defendant if you believe:
First, defendant's employee threw a hotdog that hit plaintiff; and Second, defendant's employee was thereby negligence [sic], and Third, as a direct result of such negligence plaintiff sustained damage, unless you believe plaintiff is not entitled to recover by reason of Instruction No. 11.

Instruction No. 11:

In your verdict you must not assess a percentage of fault to defendant if you believe:

First, the risk of suffering an injury by being struck by a hotdog thrown in a manner in which Sluggerrr threw the hotdog that plaintiff alleges struck him was a risk inherent in attending a game at Royals' Stadium, and
Second, plaintiff comprehended the actual risk, and Third, plaintiff intelligently accepted the risk.

Coomer objected to Instruction No. 11 (and to the tail on Instruction No. 9 directing the jury to that instruction) on the same grounds raised in his directed verdict motion. In addition, Coomer objected to the Royals' proposed comparative fault instruction,[2] arguing that there was insufficient evidence to submit this issue to the jury. The trial court overruled Coomer's objections.

The jury returned a verdict in favor of the Royals. The verdict form states that the jury assessed zero percent of fault to the Royals and 100 percent of fault to Coomer, but it does not disclose the basis for this decision. Coomer moved for judgment notwithstanding the verdict and for a

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new trial based on the arguments asserted in his directed verdict motion and in his objections to the jury instructions. The trial court overruled Coomer's motions and entered judgment for the Royals. Coomer appeals and, after granting transfer, this Court has jurisdiction. See Mo. Const. art. V, § 10.

Standard of Review

This Court reviews claims of instructional error de novo. Hervey v. Missouri Dept. of Corrections, 379 S.W.3d 156, 159 (Mo. banc 2012). The Court will not vacate a judgment on the basis of such an error, however, unless that error materially affected the merits of the action. Id. Accordingly, " the party challenging the instruction must show that the offending instruction misdirected, misled, or confused the jury, resulting in prejudice to the party challenging the instruction." Id. (citation omitted).


This case presents the question of whether the century-old affirmative defense commonly referred to as " assumption of the risk" survived this Court's adoption of comparative fault in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). To the extent it survives, Coomer claims that the application of this doctrine is to be decided by the court and not the jury. The Court agrees. Because the trial court erred in submitting the question of assumption of the risk to the jury, the judgment in this case must be vacated and the matter remanded.

I. Assumption of the Risk in a post-Gustafson World

It is safe to say that judicial analysis and application of assumption of the risk doctrine has not always achieved high marks for clarity and precision. Historically, courts often failed to draw or maintain important distinctions between this doctrine and defenses such as contributory negligence, which, though they may have seemed similar to assumption of the risk, were quite different. Simons, Reflections on Assumption of Risk, 50 UCLA L. Rev. 481, 486 (2002) (" Reflections " ). Admittedly, those distinctions seldom made any difference as a practical matter because any of these often-overlapping defenses was sufficient to bar completely all recovery by the plaintiff. At least this was so before the advent of comparative fault. Because Gustafson rejects the complete defense of contributory negligence in favor of the partial defense of comparative fault, greater precision is required when analyzing claims of assumptions of the risk.

The assumption of the risk doctrine was a relative late-comer in the law of negligence. See William Prosser, Handbook of the Law of Torts, at 376 (1941) (hereinafter, " Prosser on Torts" ) (identifying 1809 as the earliest use of the defense in a negligence action). The basic principle of this defense is easily stated: if a person voluntarily consents to accept the danger of a known and appreciated risk, that person may not sue another for failing to protect him from it. See Ross v. Clouser, 637 S.W.2d 11, 14 (Mo. banc 1982) (recovery is barred when the plaintiff " comprehended the actual danger and intelligently acquiesced in it" ). In practice, however, this principle proved easier to state than to apply.

The simplest application of this doctrine recognizes that, when a plaintiff makes an express statement that he is voluntarily accepting a specified risk, the plaintiff is barred from recovering damages for an injury resulting from that risk. This application (i.e., " express assumption of the risk" ) most often ...

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