Baseball may not be known as America’s most dangerous spectator sport, but tell that to the woman sitting behind home base at the Washington Nationals July 21 game against the Los Angeles Dodgers (http://yhoo.it/17uIjeq). The woman was struck in the shoulder after the net behind the home plate failed to catch a foul ball.
Stray foul balls are not the only threat to the spectator, particularly those who were sitting in the Kansas City Royals stadium the day the team mascot, Slugerrr, decided to launch foil-wrapped hot dogs into the crowd. In between innings, Slugerrr tossed out hot dogs by hand and using a machine in a gimmick that backfired when visitor John Coomer was allegedly struck in the eye.
He is suing after suffering a detached retina and other injuries. His case has recently won an appeal over whether he consented to assuming the risk by attending the baseball game or if the hot dog incident went beyond the scope of his consent (http://bit.ly/1086LBU).
The hot dog incident is likely much less common than the stray ball, but when both types of plaintiffs sue in court to recover for personal injuries, the first defense heard is always the same: spectators assume the risk of being injured at a sporting event. This consent is effectively given the moment that an attendee steps foot into the open arena.
Assumption of the risk, consent, and the existence of an exculpatory clause are known as “affirmative defenses” to alleged negligence. Raising an affirmative defense allows the defense to avoid responding to the merits of any claims of negligence from the plaintiff. The hurdle for personal injury attorneys addressing affirmative defenses, like consenting to assuming the risk, involves showing:
- Was the risk known to the plaintiff at the time consent was given?
- Was the risk consented to the type the plaintiff encountered?
If the risk was not the type encountered, then the plaintiff could not have consented to accepting the risk. This was the basis for the judge overturning the original decision favoring the Royals, stating, “The risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game… Consequently, a plaintiff may not be said to have consented to, and voluntarily assumed, the risk by attending the game.”
The situation is not yet fully decided, so check back as we continue to cover important cases and other news.