Comment on the claim for damages caused by flying hotdog at the ballpark

Last month I posted a note about a recently filed claim against the Kansas City Royals for damages caused when its "mascot" (an unnamed performer in a lion suit) threw hotdogs at the crowd. See here. I don't think the case is frivolous and I also don't think that the defense of assumption of the risk should apply. Today Prof. Michael McCann (Vermont Law School) posted a short comment on the case at TortsProf Blog (available here and it includes a link to the original complaint). In his comment, Prof. McCann essentially argues that the notion that spectators assume the risk of injury by foul balls during baseball games should not apply to the case because it is premised on dangers from actual baseball play, as opposed to between innings entertainment. He also argues that using the defense of assumption of the risk is questionable because fans should not necessarily be obligated to pay attention when the game isn’t being played.