A Kansas man injured by a flying hot dog at a 2009 Royals game will get another bite at the sausage, a state appeals court ruled Tuesday.
By MARK MORRIS
The Kansas City Star
John Coomer allegedly suffered a detached retina and other injuries when a foil-wrapped hot dog flung by Royals mascot Sluggerrr smacked him in the left eye. A jury ruled in March 2011 for the Royals, finding that being struck by airborne groceries was an inherent risk that Coomer assumed by buying a ticket.
The Missouri Western District Court of Appeals disagreed, however.
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 court ruled. Consequently, a plaintiff may not be said to have consented to, and voluntarily assumed, the risk by attending the game.
The appeals court said the trial judge erred when he instructed jurors that if Coomer had accepted the risk, the Royals could not be held liable for his injuries.
The incident happened during one of those entertaining between-inning bits when Sluggerrr stands on a dugout roof and fires bubble-wrapped hot dogs into the stands with an air cannon. While an assistant reloads the cannon, Sluggerrr grabs a handful of foil-wrapped hot dogs and tosses them into the crowd.
On the day in question, according to Coomers suit, Sluggerrr tried a behind-the-back throw but lost control of the sausage.
Attorney Robert Wells Tormohlen, who represented Coomer, said he was pleased but not surprised by the ruling.
I know my client would definitely like another chance to try this case, Tormohlen said.
Coomer was sitting with his father six rows behind the third-base dugout. At trial, Coomer testified that he saw Sluggerrr make the behind-the-back motion, glanced up at the scoreboard and a split second later felt something hit him.
At trial, attorneys representing the Royals contended that Coomer should have taken more responsibility for his personal safety.
Scott David Hofer, a lawyer representing the Royals, on Tuesday defended the jurys verdict and described any instruction error from the trial judge as harmless.
Obviously, we disagree with this decision, Hofer said. The court of appeals ruled that the jury was properly allowed to compare the fault of the parties. And the jury did that, finding that Mr. Coomer was 100 percent at fault.
Hofer said the Royals have not decided whether to ask the appeals court to hear the case again or to ask the Missouri Supreme Court to review it.
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