Flying Hot Dogs Not Inherent To The Game of Baseball, Says Missouri Supreme Court

If you follow Anne Coulter’s reasoning, we assume you aren’t caught up in the World Cup craziness. As such, you are left to focus on America’s pastime, baseball, in order to get your sports fix for the summer. Baseball is a fine sport, to be sure, but things often get a little boring at this point in the season. Thankfully, the Missouri Supreme Court has finally issued its opinion in the now infamous flying hotdog case, Coomer v. Kansas City Royals Baseball Corp., No. SC93214 (Mo. June 24, 2014), to spice up the mid-season doldrums. Of course, we had to review and comment upon this important piece of jurisprudence.

For those new to the case, the facts are these: Coomer is an avid baseball fan who had been to approximately 175 Kansas City Royals games. In September 2009, during game number 176, Coomer was hit in the face by a hotdog thrown by the Royals mascot, Sluggerrr. The impact of the flying dog allegedly caused Coomer to sustain a detached retina. Thereafter, as you might expect if you regularly read this blog, Coomer sued the Royals. The case proceeded to trial, and the jury charged as to whether the risk of being hit by a hot dog was inherent in attending a Royals game. After receiving this charge, the jury returned a defense verdict, allocating 100 percent of the fault to Coomer himself. In a lengthy opinion, the Missouri Supreme Court vacated the jury’s decision and remanded the case. At issue in the case was the so-called “Baseball Rule” which essentially protects teams from risks that are inherent to the game, i.e. foul balls entering the stands. According to the Court, the members of which have apparently never heard “Take Me Out to the Ballgame,” the risk of being injured by Sluggerrr’s hot dog toss is not one of the inherent risks of watching a Royals home game. Because assumption of risk is a question of law, the Court held that it was an error to charge the jury on the issue and that such a charge was prejudicial.

Admittedly, when we here at Abnormal Use first heard about this case, we were skeptical. It is not uncommon to see vendors tossing food to fans at a baseball game. (Note: Sluggerr’s official website indicates that he throws hot dogs.). Plus, the thought of a flying hot dog injury sounds absurd on its face. Nonetheless, we must actually agree with the Missouri Supreme Court in this instance. As crazy as a flying hot dog might sound, we don’t believe it is necessarily a risk inherent to the game of baseball nor do we believe it is within the intended scope of the “Baseball Rule.” Unlike a foul ball, this type of harm could more easily be avoided albeit to the dismay of food tossing mascots everywhere.

If this case is tried again, the jury could always return the same result if it finds Coomer was negligent in some manner by not preparing himself to catch the dog (who knows?). The real impact of this decision may not be felt by Coomer but by sports teams nationwide. Certainly, teams will have to think twice before allowing mascots to distribute items to fans by hand toss or t-shirt gun. Which begs the question, what else do mascots actually do?

Missouri Woman’s Lawsuit Seeks Resurrection Following Deadly Credit Inquiry

Popular culture has seen its share of humans posthumously becoming re-animated and attempting to perform various activities.   We have seen the dead vote in elections, stagger around in search of human flesh, and participate in hilarious party weekends.  Just when we thought we had seen it all, Kimberly Haman proves that the dead can file lawsuits. That’s right, Ms. Haman has filed suit in the United States District Court for the Eastern District of Missouri against Equifax and the Heartland Bank for, among other things, violating the Fair Credit Reporting Act (“FCRA”) by wrongfully killing her.  Apparently, Ms. Haman went to Heartland Bank in order to be added to her parents’ joint bank account.  In connection therewith, the bank required Ms. Haman to submit to a credit inquiry.  Much to Ms. Haman’s dismay, the consequences of this seemingly innocent inquiry into her creditworthiness would be deadly. That is, Ms. Haman alleges that in the process of performing the credit inquiry, the bank informed Equifax that Ms. Haman was deceased, and this somehow became part of Ms. Haman’s credit report.  According to Ms. Haman, she is, in fact, not deceased.

As you might imagine, lenders are less confident that an individual will be able to repay his or debts if that individual is deceased.  According to Ms. Haman, this mistake caused her to be denied credit cards and mortgage refinancing, among other financial woes.  The mistake was not remedied by the defendants despite repeated assurances that the error would be corrected.

This is an interesting case.  All we have at this point is the complaint, so the factual allegations have not been truly tested.  Those of us who have applied for any form of financing can sympathize with Ms. Haman.  At least one jury sympathized with an Oregon woman who alleged that Equifax ruined her credit score, awarding her over $18 million.  On the other side of the coin, we can also sympathize with the employee(s) of the defendant(s) who may have made an innocent clerical mistake that resulted in litigation.  The truth is likely somewhere in the middle as it often is.  It will be interesting to see how this case plays out.

(Hat tip: Courtside).

“MZU SUX” License Plate – Obscene or Funny?

Does the word “sucks” have an obscene connotation?  That is a question recently addressed by a Missouri Court of Appeals.  The case stems from a personalized Missouri license plate obtained by a University of Kansas Jayhawks fan.  This license plate read “MZU SUX”  (shorthand for Mizzou Sucks), which was an obvious shot at the Jayhawks’ rival the University of Missouri.  The court of appeals held that the fan could keep the plate.

The plate’s owner obtained it in 2009 through the normal application process for obtaining a personalized state issued license plate.  However, shortly after the plate was issued, the Missouri Department of Revenue attempted to recall the plate, citing a statute that says no personalized license plate shall be obscene or profane.  The owner argued that in recent decades the term “sucks” has come to mean “subpar” and that the license plate was intended to be funny.  At an administrative hearing on the matter, the commissioners agreed and ruled that term “sucks” was not obscene. The Department of Revenue appealed the commission’s ruling to the court of appeals, which didn’t exactly answer the question of whether “sucks” was an obscene word.  Instead, it deferred to the commission’s decision on the grounds that there was an adequate basis for its ruling and that it would not substitute its own opinion for that of the commission.

The Court noted, however, that “another fact finder may have found otherwise.”

The whole case is a little silly, but I guess we can score this as a victory for free speech.  At minimum, it’s a victory for those who believe that Mizzou is “subpar.”

The case is Gettler v. Director of Revenue, No. WD 75783 (Mo. Ct. App. Oct. 15, 2013).


Failure-to-Warn Claims Fail Without Evidence Plaintiff Would Have Pursued Alternative Course of Action

An overweight plaintiff who was seriously injured when her car’s seat failed in a collision recently lost her failure-to-warn case against Ford Motor Company. The plaintiff, who weighed more than 300 pounds, was driving a 2002 Ford Explorer at the time of the accident. She had stopped to make a turn and was rear-ended by an SUV travelling approximately 30 miles per hour. During the collision, the plaintiff’s seat collapsed backwards, and her head and shoulders hit the back seat. The impact with the back seat fractured her vertebra rendering her a paraplegic.


The plaintiff and her car accident lawyer riverside claimed that the Explorer’s seats were not designed for a person of her size and that Ford should have provided warnings. She claimed that she would not have purchased the vehicle if she had known that the seats were not designed or tested to perform with occupants of her size. She also claimed that Ford was negligent in failing to design and test seats for occupants who weighed more than 220 pounds.

The trial court granted Ford’s motion for directed verdict. The Missouri Court of Appeals upheld the directed verdict as to a plaintiff’s failure to warn claims. The court held that the plaintiff failed to present evidence that she would have taken an alternative course of action had Ford provided her with warnings. Moore v. Ford Motor Co., — S.W.3d —, No. ED 92770, 2009 WL 4932736 (Mo. Ct. App. Dec. 22, 2009).


The Court of Appeals held that it was it was essential to plaintiff’s failure to warn claim that she prove that “a warning would have altered the behavior of the individuals involved in the accident.” Id. (citing Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. 1992)). Although Missouri law calls for a rebuttable presumption that the plaintiff would have heeded a warning had it been available, the court held that the plaintiff must still offer evidence that she would have pursued an alternative course of action in heeding the warning. Here, the plaintiff offered no evidence of what alternative course of action she would have taken had she been warned of the fact that Ford’s seats had not been tested for a person of her size.

The court found it significant that the plaintiff admitted she did not review the owner’s manual until after she had purchased the car. This undermined her theory that she would have altered her behavior before buying the vehicle, had Ford provided adequate warnings. The court held that there simply was no evidence that plaintiff would have altered her conduct in purchasing the Ford even if there had been warnings. That fact precluded recovery on plaintiff’s failure to warn claims.

An Exception to the Firefighter’s Rule in Missouri

A recently released opinion from the Missouri Court of Appeals addresses some interesting points of law involving the Fireman’s Rule. In confronting that issue, the appellate panel in Martin v. Survivair Respirators, Inc., 298 S.W.3d 23 (Mo. Ct. App. 2009) [PDF] affirmed a $27 million verdict and sustained an abnormal use of “but-for” causation.

Regrettably, Martin involves the death of a firefighter. For this particular firefighting squad, each firefighter had a face mask with a valve that expelled the firefighter’s exhaled breath and a PASS alarm. The PASS alarm would screech when it was motionless for twenty seconds. At a fire in St. Louis, Firefighter Morrison, with the above-described equipment, entered a building in which the fire flared up. Morrison became disoriented and eventually non-responsive. After another firefighter, Walters, was unable to rescue Morrison, Walters left the building and informed other firefighters, including Martin, that Morrison was down. Morrison’s PASS alarm failed to activate. Martin entered the building and quickly radioed a personal distress call. Martin activated his PASS alarm in order to be found, but he proved difficult to locate because “the sound bounced off the walls.” Id. Martin was recovered, but not before he died of smoke inhalation. In response to the suit brought against it, the manufacturer, Survivair, claimed, among other things, that the Fireman’s Rule barred recovery, and that there was not a sufficient causal link between the failure of Morrison’s PASS and Martin’s death. Addressing the issue, the panel recited the Fireman’s Rule as follows:

The Fireman’s Rule states that a fireman who is brought in contact with an emergency situation solely by reason of his status as a fireman and who is injured while performing a fireman’s duties may not recover against the person whose ordinary negligence created the emergency.

298 S.W.3d at 32. The panel found that the Fireman’s Rule was inapplicable because the failure of the PASS alarm was not the cause of the fire and not within the “range of anticipated risks” involved with firefighting. It quickly moved to causation. Survivair argued that the failure of Morrison’s PASS was not the cause of Martin’s death. This makes sense. First, Martin was in a place of safety, outside of the burning building, when the PASS malfunctioned. Second, Martin went in the building voluntarily. The court gave weight to testimony that tended to show that because of Morrison’s malfunctioning PASS, Martin was in the building for much longer that he needed to be: Several firefighters testified that had Morrison’s PASS worked, he would have been found much sooner, meaning Martin could have left sooner. (This is in spite of the fact that, when Martin activated his PASS, there was testimony that the sound was bouncing off of the walls making him difficult to find.) Moreover, Martin’s own mask malfunctioned, and he was not wearing it when he was found. Nevertheless, under the approved jury instructions, because the plaintiffs submitted “substantial evidence” that the PASS directly “contributed to [the] cause” of the death of Martin, the case was properly submitted to the jury. Id. There are obviously several things at play here, like a deferential standard of review and terrible facts, but sustaining such a large verdict on speculative testimony and a weak (but approved) standard is troubling.