Missouri Court of Appeals interprets notion of primary assumption of the risk correctly and reinstates case against KC Royals (and their mascot)

Almost two years ago, I began to follow an interesting case filed against the Kansas City Royals seeking compensation for injuries suffered when a spectator at a KC Royals baseball game was hit by a flying hot dog tossed by the team's mascot.  For my original posts on the case go here and here.  You can see a video of the mascot shooting hot dogs here, although, the claim in the case referred to a hand tossed hot dog.

In March of last year the jury reached a verdict on the case. After deliberating for about an hour, the jury found in favor of the team.  See here.

But that is not the end of the story.  This week, the  Missouri Court of Appeals reversed the judgment and reinstated the case against the Kansas City Royals. The case is Coomer v. Kansas City Royals, and you can read the opinion here.  Go here, here and here for comments on the decision.

The case revolves around the notion of "primary assumption of the risk" which I have criticized many times before (see, here and here for example).

However, as opposed to many of the other cases I have criticized on the subject, the court in this case does a better job of explaining the issue.

Primary implied assumption of risk operates to negate the negligence element of duty. . . . The plaintiff’s voluntary participation in the activity serves as consent to the known, inherent, risks of the activity and relieves the defendant of the duty to protect the plaintiff from those harms. . . . Because the defendant has no duty to protect against those inherent risks, he cannot be found negligent for causing the plaintiff injury. . . . The risks assumed, however, “are not those created by a defendant’s negligence but rather by the nature of the activity itself.” . . .

The bottom line is that primary assumption of the risk has nothing to do with assumption of the risk.  It has nothing to do with an evaluation of the plaintiff's conduct in order to determine if he/she voluntarily decided to undertake a known risk.  Primary assumption of the risk is a policy question that asks the court to decide whether to impose a duty on the defendant to act to protect others from certain risks.  

It is often said that spectators assume the risk of getting hit by foul balls at baseball games and that, thus, those in charge of the game do not have a duty to protect them.  Neither of the two parts of this statement is entirely correct though, since the spectators who sit behind home plate (and half way to first and third bases) do not assume that risk and the defendants do have a duty to protect them.

So, in the hot dog tossing case, the question becomes whether there should be a duty to protect spectators from other risks involved in watching baseball games.  As the court suggests, the answer at this point is "maybe" if the risk is inherent to the game but probably no if the risk is not inherent and, more so, if it is created by the negligence of the defendant himself.  As the court explains,

The issue is thus whether the risk Mr. Coomer encountered was one which inhered in the game, or one which would be created by the defendant’s negligence. . . .  Mr. Coomer argues that the trial court erred in submitting the defense to the jury because “the risks created by a mascot throwing promotional items do not arise from the inherent nature of a baseball game.” On these facts, we agree.

 I do too.