By Thomas Ahmadifar, Associate Managing Editor

On September 11, 2013, the Missouri Supreme Court heard oral arguments in the case of Coomer v. Kansas City Royals Baseball Corporation.[1] In what appears a simple tort claim for monetary damages, the Missouri Supreme Court could turn how Americans experience live sporting events on its head (and not like this) if it upholds the Missouri Court of Appeals. As a former collegiate mascot (in full disclaimer), I fear the greater implications of Coomer.

During a 2009 Kansas City Royals baseball game, the Royals’ mascot “Sluggerrr” was in the midst of a hot dog toss while standing on the third base dugout when he attempted a behind the back throw of a hot dog wrapped in aluminum foil. Instead of falling in the lap of a hungry fan, the hot dog struck Mr. Coomer in the eye and he later had to undergo numerous surgeries for a detached retina and a cataract. In overturning the jury of Jackson County and finding for Mr. Coomer, the Missouri Court of Appeals ruled that Sluggerrr created the risk of flying hot dogs faced by Mr. Coomer rather than the inherent nature of the baseball game.[2]

Holding that a risk created by a mascot is not inherent to the nature of the sporting event would be a major development on a largely undeveloped issue. Very few cases have ruled on whether a mascot owes a duty of care towards fans at sporting events.[3] Generally, courts deny flying object claims against sports teams under the “baseball rule,” where attendees of live sporting events assume the risk of being hit by objects originating on the field of play.[4] The “baseball rule” is based on the principle that a flying baseball from the field of play is an “inherent [risk] . . . that [inures] in the nature of the sport itself.”[5] But according to the Court of Appeals, flying promotional items are not inherent risks derived out of the nature of the sport.[6] Or, as a California court found in a 1997 case, mascots are not “essential” elements of a sport, thus they cannot be wrapped into the protection of the “baseball rule.”[7]

As a former collegiate mascot, even I find it hard to argue that the actions of mascots are “essential” to the on-field nature of a sport. However, that should not simultaneously squash the argument that mascots are essential to a sporting event. There is a reason mascots are often housed within the marketing departments of athletic departments or professional teams.[8] Their role is to enhance the interactive element of a sporting event, providing fans an opportunity to hug, high-five, and take pictures with the distinctive symbol of the team. Furry heads, oversized feet, and scripted skits add an element of hilarity and excitement for all ages that can spice up even the most mediocre of on-field play. Because of their prevalence and popularity (there are sporting events entirely comprised of mascots), there is a strong argument that mascots are an essential element of sporting events themselves, one in which spectators have come to expect; albeit not an essential element that is within the inherent nature of the on-field play.

What being essential to a sporting event might mean for a legal standard of care is an open question just as much as whether flying promotional objects can fall within the “baseball rule.” After all, lawsuits against mascots for their antics are nothing new and may be entirely legitimate. As with many tort claims, the dispositive issue is not only whether the tortfeasor had a legal duty towards the victim, but also whether the tortfeasor was negligent in his or her behavior. Putting on a furry suit should never be a carte blanche for one’s actions. But exposing mascots to liability for actions that are frequent and traditional to their role at sporting events (i.e. known and expected) could force professional and college teams to scale back or eliminate the presence of mascots as a precaution. It would essentially mean teams have walking (but not talking) legal liabilities and some teams may be unable to afford such a risk. At a time when mascot popularity is arguably at an all-time high (including a new show on Hulu called “Behind the Mask”), this might cause an immeasurable number of victims.

There has to be a line somewhere. I will admit that I threw aluminum wrapped hot dogs into crowds during my two-plus years of mascoting. I have attempted a behind the back throw of a t-shirt that landed in a face rather than a pair of hands. I once even ice-skated into and over a small child because I had limited visibility below my eye-level due to the construction of the mask I was wearing. Sluggerrr might indeed deserve to be liable for the toss of that ill-fated hot dog back in 2009 and Mr. Coomer might be entitled to damages. And regardless of its outcome, Coomer may serve as the warning shot to mascots and teams that greater precautions should be taken: always bubble wrap projectile objects; greater use of handlers in higher risk environments; better mask construction; limit skit-based mascot activities to certain identified zones. But while a result that increases precaution is important, mascot extinction would be a travesty.[9]