By David Pomeroy

We are just past celebrating that uniquely American holiday that is Independence Day and we are entering the heart of baseball season, so many are enjoying the dietary staple of the summer that is the hot dog. The hot dog—the centerpiece of the American triumvirate of “baseball, hot dogs, and apple pie”. It is emblematic of our national motto: E pluribus unum (“out of many, one”) considering the dog’s constituent parts—but it is not wise to consider the parts in much detail. Suffice it to say that the whole is better.

The hot dog is even a part of our competitive spirit. Just this very 4th of July some fellow set an eating contest record by consuming 72 hot dogs in 10 minutes. Burp!

It therefore is not surprising that the hot dog has played a role in the evolving rule of law. Case law and some statutes adopted what is known as “The Baseball Rule”—basically spectators assume the known risk of baseballs and bats flying into the stands. But what about flying hot dogs?

In the Fall of 2009, a fan named Coomer attended a Kansas City Royals game and found a set a few rows behind the visitors’ dugout. The Royals’ mascot (Sluggerrr”!) began throwing hot dogs into the stands from the top of the dugout. Coomer was not looking when Sluggerrr tossed a hot dog in his direction, striking him in the eye. A detached retina was the result.

Coomer sued the Royals, alleging negligence and battery. The Royals assert defenses of assumption of the risk and comparative fault. Coomer’s arguments against these defenses failed, the court holding that a jury could determine whether such an injury was a risk of attending a ballgame. The jury held for the Royals and an appeal ensued.

The appeals court said the question was “whether the risk which led to injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game”. . .an “inherent risk”. The court found that the hot dog toss is not inherently part of the game because it is only used when the game is not actively ongoing. A flying ‘dog is not the same as a flying ball or bat.

How appropriate—a case involving cased meat. So, while devouring that hot dog at the ballpark, keep your eye out for the flying ball or bat. There is probably no recompense for the injury they might inflict.


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