                           SUPREME COURT OF MISSOURI
                                    en banc


JOHN COOMER,                                      )
                                                  )
              Appellant,                          )
                                                  )
vs.                                               )      No. SC93214
                                                  )
KANSAS CITY ROYALS                                )
BASEBALL CORPORATION,                             )
                                                  )
              Respondent.                         )


        APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY
                  The Honorable W. Brent Powell, Judge

                              Opinion issued June 24, 2014

       John Coomer claims he was injured when he was hit in the eye with a hotdog

thrown by Sluggerrr, the Kansas City Royals mascot. Coomer sued the Kansas City

Royals Baseball Corporation, claiming the team is responsible for Sluggerrr’s negligence

and the damages it caused. A jury found in favor of the Royals, and Coomer appeals.

Among the jury instructions was one asking the jury to decide whether the risk of being

injured by Sluggerrr’s hotdog toss is one of the inherent risks of watching a Royals home

game that Coomer assumed merely by attending. Whether a particular risk is inherent in

watching a sporting event is a question of law for the court, not a question of fact for the

jury. This Court holds that the risk of being injured by Sluggerrr’s hotdog toss is not one

of the inherent risks of watching a Royals home game.
       In the past, this Court has held that spectators cannot sue a baseball team for

injuries caused when a ball or bat enters the stands. Such risks are an unavoidable – even

desirable – part of the joy that comes with being close enough to the Great American

Pastime to smell the new-mown grass, to hear the crack of 42 inches of solid ash meeting

a 95-mph fastball, or to watch a diving third baseman turn a heart-rending triple into a

soul-soaring double-play. The risk of being injured by Sluggerrr’s hotdog toss, on the

other hand, is not an unavoidable part of watching the Royals play baseball. That risk is

no more inherent in watching a game of baseball than it is inherent in watching a rock

concert, a monster truck rally, or any other assemblage where free food or T-shirts are

tossed into the crowd to increase excitement and boost attendance.

       Accordingly, Coomer’s claim is not foreclosed by the assumption of the risk

doctrine. Instead, it is up to the jury to decide: (1) whether Sluggerrr injured Coomer by

hitting him with a hotdog, and (2) whether Sluggerrr was negligent in doing so. If so, the

jury is entitled to hold the Royals liable for Coomer’s damages, and the jury is entitled to

reduce those damages by whatever percentage of fault the evidence shows should be

assessed to Coomer. Because the jury instructions given below introduced an improper

consideration into this otherwise ordinary analysis, the Court vacates the judgment in

favor of the Royals and remands this case.

                                       Background

       Coomer is a longtime baseball fan and frequent spectator at Royals games in

Kauffman Stadium. On September 8, 2009, he brought his father along to watch the

Royals host the Detroit Tigers. Only about 12,000 people were on hand to watch the
game because it had rained most of the day. With such a small crowd, Coomer and his

father left their assigned seats early in the game and moved to empty seats six rows

behind the visitor’s dugout.

       Shortly after Coomer changed seats, Sluggerrr mounted the visitor’s dugout to

begin the “Hotdog Launch,” a feature of every Royals home game since 2000. The

launch occurs between innings, when Sluggerrr uses an air gun to shoot hotdogs from the

roof of the visitor’s dugout to fans seated beyond hand-tossing range. When his

assistants are reloading the air gun, Sluggerrr tosses hotdogs by hand to the fans seated

nearby. Sluggerrr generally tossed the hotdogs underhand while facing the fans but

sometimes throws overhand, behind his back, and side-armed.

       Coomer estimates that he attended 175 Royals games before this game in

September 2009. He admits that he frequently watched Sluggerrr toss hotdogs from the

roof of the visitor’s dugout and, on September 8, he saw Sluggerrr mount the dugout to

begin the Hotdog Launch. Coomer and his father were seated approximately 15 to 20

feet from Sluggerrr, directly in his view. After employing his hotdog-shaped airgun to

send hotdogs to distant fans, Sluggerrr began to toss hotdogs by hand to fans seated near

Coomer. Coomer testified that he saw Sluggerrr turn away from the crowd as if to

prepare for a behind-the-back throw, but, because Coomer chose that moment to turn and

look at the scoreboard, he admits he never saw Sluggerrr throw the hotdog that he claims

injured him. Coomer testified only that a “split second later … something hit me in the

face,” and he described the blow as “pretty forceful.”




                                             3
       Coomer did not report this incident to the Royals when it happened because he did

not realize he had been injured. Instead, he stayed for most of the rest of Tuesday’s game

(a thrilling 7-5 effort that snapped the first-place Tigers’ six-game winning streak) and

even returned to Kauffmann Stadium the following night to witness the Royals’ further

5-1 drubbing of the Tigers. Thursday morning, however, Coomer felt he was “seeing

differently” and something “wasn’t right” with his left eye. The problem progressed

until, approximately eight days after the incident, Coomer saw a doctor and was

diagnosed with a detached retina. Coomer underwent surgeries to repair the retina and to

remove a “traumatic cataract” in the same eye.

       Coomer reported his injury to the Royals in September 2009, eight days after it

occurred. In February 2010, Coomer filed this lawsuit alleging one count of negligence

and one count of battery. 1 Regarding the negligence count, Coomer asserted that the

Royals (through its employee, Sluggerrr) failed to exercise ordinary care in throwing

hotdogs into the stands, that the team failed to adequately train Sluggerrr on how to throw

hotdogs into the stand safely, and that the team failed to adequately supervise Sluggerrr’s

hotdog toss. In its answer, the Royals admitted responsibility for Sluggerrr’s acts but

denied he had been negligent. The Royals also asserted affirmative defenses of

assumption of the risk and comparative fault.

       The Royals employee who portrays Sluggerrr testified at trial he did not remember

the throw that allegedly injured Coomer. He admitted that the Royals had given him no


1
  The trial court dismissed the battery claim in a partial summary judgment, and Coomer does
not appeal that dismissal.


                                              4
specific training on how to toss hotdogs, but testified that he was aware that fans could be

hurt and that he was careful in making his tosses. For example, when a fan is seated

nearby, Sluggerrr said he tries to make eye contact before tossing a hotdog so that the fan

will know it is coming and – if the fan is seated near enough – tries to throw the hotdog in

an arc to make it easier to catch. In addition to hearing Sluggerrr’s testimony and

Coomer’s description of the incident, the jury heard testimony from another fan who

claimed to have been injured by a hotdog toss from Sluggerrr under similar

circumstances.

       At the close of the evidence, Coomer moved for a directed verdict on the issues of

comparative fault and assumption of the risk. He argued that implied primary assumption

of the risk “only applies to risks that are inherent in the nature of the activity” and, in this

case, “the harm of getting hit with a hotdog has absolutely no relationship to going to a

baseball game.” Regarding comparative fault, Coomer argued that, as a matter of law, he

cannot have been negligent merely for not fleeing his seat during the Hotdog Launch.

The trial court overruled Coomer’s motion, holding that both (a) whether the risk of

being injured by Sluggerrr’s hotdog toss is one of the risks inherent in watching a Royals

game and (b) the reasonableness of Coomer’s actions were proper questions for the jury.

       In preparing the jury instructions, the Royals proposed adding a “tail” to

Instruction No. 9 (i.e., the verdict director for Coomer’s negligence claim). This tail

directs the jury to Instruction No. 11, which asks the jury to decide whether injury from

Sluggerrr’s hotdog toss is an inherent risk of watching the Royals play baseball. The

Royals’ proposed instructions, as given, read:


                                               5
                                        Instruction No. 9

        In your verdict you must assess a percentage of fault to the defendant if you
        believe:
                First, defendant’s employee threw a hotdog that hit plaintiff; and
                Second, defendant’s employee was thereby negligence [sic], and
                Third, as a direct result of such negligence plaintiff sustained
                damage,
        unless you believe plaintiff is not entitled to recover by reason of Instruction No.
        11.

                                       Instruction No. 11:

        In your verdict you must not assess a percentage of fault to defendant if you
        believe:
                First, the risk of suffering an injury by being struck by a hotdog
                thrown in a manner in which Sluggerrr threw the hotdog that
                plaintiff alleges struck him was a risk inherent in attending a game at
                Royals’ Stadium, and
                Second, plaintiff comprehended the actual risk, and
                Third, plaintiff intelligently accepted the risk.

        Coomer objected to Instruction No. 11 (and to the tail on Instruction No. 9

directing the jury to that instruction) on the same grounds raised in his directed verdict

motion. In addition, Coomer objected to the Royals’ proposed comparative fault

instruction,2 arguing that there was insufficient evidence to submit this issue to the jury.

The trial court overruled Coomer’s objections.



2
    Instruction No. 12 submitted comparative fault to the jury as follows:
        In your verdict you must assess a percentage of fault to plaintiff if you believe:
        First, either:
                 plaintiff observed the manner in which the “Hotdog Launch” was being
                 conducted on September 8, 2009, and with such knowledge, he stayed in the area
                 where the “Hotdog Launch” was being conducted, or


                                                 6
       The jury returned a verdict in favor of the Royals. The verdict form states that the

jury assessed zero percent of fault to the Royals and 100 percent of fault to Coomer, but it

does not disclose the basis for this decision. Coomer moved for judgment

notwithstanding the verdict and for a new trial based on the arguments asserted in his

directed verdict motion and in his objections to the jury instructions. The trial court

overruled Coomer’s motions and entered judgment for the Royals. Coomer appeals and,

after granting transfer, this Court has jurisdiction. See Mo. Const. art. V, § 10.

                                     Standard of Review

       This Court reviews claims of instructional error de novo. Hervey v. Missouri

Dept. of Corrections, 379 S.W.3d 156, 159 (Mo. banc 2012). The Court will not vacate a

judgment on the basis of such an error, however, unless that error materially affected the

merits of the action. Id. Accordingly, “the party challenging the instruction must show

that the offending instruction misdirected, misled, or confused the jury, resulting in

prejudice to the party challenging the instruction.” Id. (citation omitted).

                                            Analysis

       This case presents the question of whether the century-old affirmative defense

commonly referred to as “assumption of the risk” survived this Court’s adoption of

comparative fault in Gustafson v. Benda, 661 S.W.2d 11 (Mo. banc 1983). To the extent



               plaintiff unreasonably failed to appreciate the risks associated with the manner in
               which the “Hotdog Launch” was being conducted on September 8, 2009, and
       Second, plaintiff, in any one or more of the respects submitted in paragraph First, was
       thereby negligent, and
       Third, such negligence of plaintiff directly caused or directly contributed to cause any
       damage plaintiff may have sustained.


                                                7
it survives, Coomer claims that the application of this doctrine is to be decided by the

court and not the jury. The Court agrees. Because the trial court erred in submitting the

question of assumption of the risk to the jury, the judgment in this case must be vacated

and the matter remanded.

I.     Assumption of the Risk in a post-Gustafson World

       It is safe to say that judicial analysis and application of assumption of the risk

doctrine has not always achieved high marks for clarity and precision. Historically,

courts often failed to draw or maintain important distinctions between this doctrine and

defenses such as contributory negligence, which, though they may have seemed similar to

assumption of the risk, were quite different. Simons, Reflections on Assumption of Risk,

50 UCLA L. Rev. 481, 486 (2002) (“Reflections”). Admittedly, those distinctions

seldom made any difference as a practical matter because any of these often-overlapping

defenses was sufficient to bar completely all recovery by the plaintiff. At least this was

so before the advent of comparative fault. Because Gustafson rejects the complete

defense of contributory negligence in favor of the partial defense of comparative fault,

greater precision is required when analyzing claims of assumptions of the risk.

       The assumption of the risk doctrine was a relative late-comer in the law of

negligence. See William Prosser, HANDBOOK OF THE LAW OF TORTS, at 376 (1941)

(hereinafter, “PROSSER ON TORTS”) (identifying 1809 as the earliest use of the defense in a

negligence action). The basic principle of this defense is easily stated: if a person

voluntarily consents to accept the danger of a known and appreciated risk, that person

may not sue another for failing to protect him from it. See Ross v. Clouser, 637 S.W.2d


                                              8
11, 14 (Mo. banc 1982) (recovery is barred when the plaintiff “comprehended the actual

danger and intelligently acquiesced in it”). In practice, however, this principle proved

easier to state than to apply.

       The simplest application of this doctrine recognizes that, when a plaintiff makes

an express statement that he is voluntarily accepting a specified risk, the plaintiff is

barred from recovering damages for an injury resulting from that risk. This application

(i.e., “express assumption of the risk”) most often involves a written waiver or release by

the would-be plaintiff, but it can be based on any form of any explicit acquiescence.

PROSSER ON TORTS, at 376; Reflections, 50 UCLA L. Rev. at 486-87.

       In most cases, however, the plaintiff’s consent cannot be proved so easily. There,

the defendant contends that the plaintiff’s voluntary acceptance of a known and

appreciated risk should be inferred from the plaintiff’s conduct and the surrounding

circumstances. PROSSER ON TORTS, at 376. Though the distinction seldom was noted

before the adoption of comparative fault, this category of implied – rather than expressed

– assumption of the risk includes two very different applications of this doctrine:

“implied primary assumption of the risk” and “implied secondary assumption of the

risk.” The difference between these applications is the type – or, more precisely, the

source – of the risk at issue. Reflections, 50 UCLA L. Rev. at 487-89.

       When the risk arises from the circumstances (e.g., from a condition on the

defendant’s property or the inherent nature of the defendant’s activity), “implied primary

assumption of the risk” completely bars recovery by a plaintiff who knowingly and

voluntarily encounters that risk. Krause v. U.S. Truck Co., Inc., 787 S.W.2d 708, 711-12


                                              9
(Mo. banc 1990); Reflections, 50 UCLA L. Rev. at 487-88. When the risk is created by

defendant’s negligence, on the other hand, this has been identified as “implied secondary

assumption of the risk.” Lewis v. Snow Creek, Inc., 6 S.W.3d 388, 395 (Mo. App. 1999);

Reflections, 50 UCLA L. Rev. at 489. Understandably, courts were less willing to bar all

recovery in the latter circumstance unless the plaintiff not only knowingly and voluntarily

acquiesced in the risk created by the defendant’s negligence but also acted unreasonably

in doing so. Id.

       Accordingly, prior to the advent of comparative fault, a plaintiff’s claim was

barred completely by assumption of the risk if the plaintiff (a) expressly consented to

assume a known and understood risk (i.e., “express assumption of the risk”); (b)

implicitly consented (based on his conduct and surrounding circumstances) to assume a

known and understood risk that was not created by the defendant’s own negligence (i.e.,

“implied primary assumption of the risk”); or (c) implicitly consented (based on his

conduct and surrounding circumstances) to assume a known and understood risk that

resulted from the defendant’s own negligence, provided that the plaintiff acted

unreasonably in doing so (i.e., “implied secondary assumption of the risk”). Though all

three were lumped together under the heading of assumption of the risk and treated as

affirmative defenses, only the latter application was properly viewed as such.

       The version of comparative fault adopted by this Court in Gustafson

fundamentally altered this landscape. Section 1(a) of the Uniform Comparative Fault Act

(the “UCFA”) provides that “any contributory fault chargeable to the claimant diminishes

proportionately the amount awarded as compensatory damages for an injury attributable


                                            10
to the claimant's contributory fault, but does not bar recovery.” Gustafson, 661 S.W.2d at

18 (quoting from the UCFA, which is set forth in full in an appendix to that opinion).

Section 1(b) of the UCFA defines “fault” for purposes of section 1(a) to include

“unreasonable assumption of risk not constituting an enforceable express consent.” Id.

       As a result, Gustafson, rejects any further application of “implied secondary

assumption of the risk.” When a plaintiff acts unreasonably in deciding to assume a risk

created by a defendant’s negligence, such “fault” may reduce – but not bar – the

plaintiff’s recovery under Gustafson. By the same token, when the plaintiff’s decision

was reasonable, it cannot be used to reduce his recovery because reasonable behavior

does not constitute “fault” under the UCFA. Reflections, 50 UCLA L. Rev. at 489

(noting that the “predominant modern position” of most courts and the Restatement

(Third) of Torts is that secondary implied assumption of the risk has be assimilated into

comparative fault).

       But Gustafson does not reject or abandon “express assumption of the risk.”

Though this application of the assumption of the risk doctrine always has been subject to

certain limitations as a matter of public policy, 3 Gustafson and the adoption of

comparative fault have no effect on this application or its limitations. This is because, in

3
  When considering a claim of express assumption of the risk, language in a document offered
by a defendant as evidence of the plaintiff’s “consent” must be “clear, unambiguous,
unmistakable, and conspicuous language in order to release a party from his or her own future
negligence.” Alack v. Vic Tanny Int’l of Missouri, Inc., 923 S.W.2d 330, 337 (Mo. banc 1996).
The presence or absence of ambiguity in such a writing is a question for the court to decide as a
matter of law. Id. Moreover, even when the plaintiff consents unambiguously in writing, this
Court will refuse to enforce such consent in some situations because “one may never exonerate
oneself from future liability for intentional torts or for gross negligence, or for activities
involving the public interest.” Id.


                                                11
an “express assumption of the risk” case, the plaintiff’s consent relieves the defendant of

any duty to protect the plaintiff from injury. As a result, the defendant cannot be

negligent and there is no “fault” to which the jury can compare the plaintiff’s fault.

Gustafson, 661 S.W.2d at 18 (“fault” does not include “enforceable express consent”).

       By the same token, Gustafson has no effect on the continued viability of “implied

primary assumption of the risk.” Gustafson, 661 S.W.2d at 20 (“the term [“fault”] does

not include … a lack of violation of duty by the defendant (as in the failure of a

landowner to warn a licensee of a patent danger on the premises)”). This is because,

under the law of Missouri and most other jurisdictions, implied primary assumption of

the risk “is not really an affirmative defense; rather, it indicates that the defendant did

not even owe the plaintiff any duty of care.” Krause, 787 S.W.2d at 711-12 (emphasis

added). 4 With no duty to protect the plaintiff, the defendant cannot be negligent and

there is no “fault” for the jury to compare under comparative fault principles.

       Missouri’s characterization of the implied primary assumption of the risk doctrine

in terms of “duty” is decidedly mainstream:

       Like express assumption of the risk, “‘primary’ implied assumption of the
       risk …. is really a principle of no duty, or no negligence, and so denies the
       existence of any cause of action.”

4
   See also Harris v. Niehaus, 857 S.W.2d 222, 227 (Mo. banc 1993) (even after comparative
fault, the open and obvious nature of the risks is an issue for the court to use “in determining a
possessor of land’s standard of care”) (emphasis added); Sheppard v. Midway R-1 Sch. Dist.,
904 S.W.2d 257, 261-62 (Mo. App. 1995) (“Implied primary assumption of risk, like express
assumption of risk, relates to the initial issue of whether the defendant had a duty to protect the
plaintiff”) (emphasis added); Lewis, 6 S.W.3d at 395-96 (“if the plaintiff’s injury is the result of
a risk inherent in the sport in which he was participating, the defendant is relieved from liability
on the grounds that by participating in the sport, the plaintiff assumed the risk and the defendant
never owed the plaintiff a duty to protect him from that risk”) (emphasis added).


                                                 12
W. Page Keeton, PROSSER AND KEETON ON TORTS, at 496-97 (5th ed. 1984). 5

       Accordingly, when the plaintiff is injured by the defendant’s negligence, this

Court holds that the adoption of comparative fault in Gustafson precludes any

consideration of the plaintiff’s conduct in assuming that risk (i.e., implied secondary

assumption of the risk) except as a partial defense under a proper comparative fault

instruction. Conversely, because the “express” and “implied primary” applications of

assumption of the risk result in determinations that the defendant has no duty to protect

the plaintiff, the form of comparative fault adopted in Gustafson does not preclude these

applications as a complete – not merely a partial – bar to the plaintiff’s recovery.

II.    Implied Primary Assumption of the Risk and the “Baseball Rule”

       One of the most interesting – and certainly the most relevant – applications of

implied primary assumption of the risk involves certain risks assumed by spectators at

sporting events. Long before the Kansas City Athletics moved to Oakland and the

fledging Royals joined the Junior Circuit, an overwhelming majority of courts recognized

that spectators at sporting events are exposed to certain risks that are inherent merely in

watching the contest. Accordingly, under what is described above as implied primary

assumption of the risk, these courts held that the home team was not liable to a spectator

injured as a result of such risks. See Augustine, Who Is Responsible When Spectators Are

5
   See also Neinstein v. Los Angeles Dodgers, Inc., 185 Cal. App. 3d 176, 184, (1986) (deciding
as a matter of law that “Dodgers were under no duty to do anything further to protect her from
that [foul ball] hazard”) (emphasis added); Friedman v. Houston Sports Ass’n, 731 S.W.2d 572,
575 (Tex. App. 1987) (deciding as a matter of law that “stadium owner has no duty to warn
spectators of the danger of foul balls”) (emphasis added); When Spectators Are Injured, 2008
Den. U. Sports & Ent. L.J. at 42-46 (collecting cases).


                                              13
Injured While Attending Professional Sporting Events?, 2008 Den. U. Sports & Ent. L.J.

39, 42-46 (2008) (“When Spectators Are Injured”).

       The archetypal example of this application of implied primary assumption of the

risk is when a baseball park owner fails to protect each and every spectator from the risk

of being injured by a ball or bat flying into the stands. Just as Missouri teams have led

(and continue to lead) professional baseball on the field, Missouri courts helped lead the

nation in defining this area of the law off the field. More than 50 years ago, this Court

was one of the first to articulate the so-called “Baseball Rule:”

       [W]here a baseball game is being conducted under the customary and usual
       conditions prevailing in baseball parks, it is not negligence to fail to
       protect all seats in the park by wire netting; and that the special
       circumstances and specific negligence pleaded did not aid plaintiff or
       impose upon the defendant a duty to warn him against hazards which are
       necessarily incident to baseball and are perfectly obvious to a person in
       possession of his faculties.

Anderson v. Kansas City Baseball Club, 231 S.W.2d 170, 172 (Mo. 1950) (emphasis

added). 6

       Anderson was based on this Court’s earlier decision in Hudson v. Kansas City

Baseball Club, 164 S.W.2d 318, 320 (Mo. 1942), which used the “no duty” language of

implied primary assumption of the risk to explain its holding:

       The basis of the proprietor’s liability is his superior knowledge and if his
       invitee knows of the condition or hazard there is no duty on the part of the
       proprietor to warn him and there is no liability for resulting injury because
6
   This “no duty” or “limited duty” rule for claims by baseball spectators has been dubbed the
Baseball Rule and has been adopted by every court to consider it, save one. Benejam v. Detroit
Tigers, Inc., 635 N.W.2d 219, 221 (2001(Mich. App.) (“review of precedents from other
jurisdictions finds overwhelming, if not universal, support for the limited duty rule,” and noting
that the contrary decisions in Illinois were overruled by statute).



                                                14
       the invitee has as much knowledge as the proprietor does and then by
       voluntarily acting, in view of his knowledge, assumes the risks and dangers
       incident to the known condition.

Hudson, 164 S.W.2d at 323 (emphasis added) (applying Restatement (Second) of Torts,

§ 343). Hudson involved a spectator with personal knowledge of the inherent risk of

being injured by a foul ball while watching a baseball game. But, when the Court

returned to this same issue eight years later in Anderson, it continued to rely on section

343 of the Restatement (Second) of Torts (i.e., the “open and obvious dangers” doctrine

under the rules of premises liability) to extend Missouri’s no-duty rule to cases involving

baseball spectators with no prior knowledge of baseball or the risks inherent in watching

it.

       All of the cases cited here and many others which are cited in Hudson v.
       Kansas City Baseball Club, supra, emphasize that when due care has been
       exercised to provide a reasonable number of screened seats, there remains a
       hazard that spectators in unscreened seats may be struck and injured by
       balls which are fouled or otherwise driven into the stands. This risk is a
       necessary and inherent part of the game and remains after ordinary care
       has been exercised to provide the spectators with seats which are
       reasonably safe. It is a risk which is assumed by the spectators because it
       remains after due care has been exercised and is not the result of negligence
       on the part of the baseball club. It is clearly not an unreasonable risk to
       spectators which imposes a duty to warn [or protect].

Anderson, 231 S.W.2d at 173 (emphasis added). 7


7
   This use of an objective standard based on what a defendant reasonably can expect, rather than
a subjective standard based on what a plaintiff actually knew and understood, is one of the key
distinctions between the primary and secondary varieties of implied assumption of the risk that
went unnoticed until comparative fault. It also explains why, before comparative fault, the
former was decided by the court as a question of the defendant’s “duty,” while the latter was
usually decided by the jury as an affirmative defense. As noted above, Gustafson merges the
latter into the jury’s consideration of comparative fault but leaves the former to be decided by the
court just as before. See Harris, 857 S.W.2d at 227 (notwithstanding Court’s adoption of


                                                15
       Anderson and Hudson are just two of the many dozens of cases 8 around the

country holding that, as long as some seats directly behind home plate are protected, the

team owes “no duty” to spectators outside that area who are injured by a ball or bat while

watching a baseball game. 9 Despite being decided by such different courts across so

many decades, all of these cases reflect certain shared principles. First, it is not possible

for baseball players to play the game without occasionally sending balls or bats (or parts

of bats) into the stands, sometimes at unsafe speeds. Second, it is not possible for the

home team to protect each and every spectator from such risks without fundamentally

altering the game or the spectators’ experience of watching it through such means as: (a)

substituting foam rubber balls and bats that will not injure anyone (or be very fun to

watch); (b) erecting a screen or other barrier around the entire field protecting all



comparative fault, “open and obviousness of a condition [continues] as a consideration for the
court in determining a possessor of land’s standard of care”) (emphasis added).
8
   See Zitter, Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured as Result of
Other Hazards of Game—Failure to Provide or Maintain Sufficient Screening, 82 A.L.R.6th 417
(2013) (superseding Rigelhaupt, Liability to spectator at baseball game who is hit by ball or
injured as result of other hazards of game, 91 A.L.R.3d 24 (1979), and Liability to spectator at
baseball game who is hit by a ball or injured as result of other hazards of the game, 142 A.L.R.
868 (1943)) (“Liability to Spectator”).
9
   This “limited duty” to screen only certain seats is an anachronism, far less meaningful today
than in the days before box seats, season tickets, and sellout crowds. As one court noted:
       Were we deciding this issue without the precedent … we would not be persuaded
       that there is a need to impose a duty to provide any screened seats. A person who
       fears injury always has the option of refraining from attending a baseball game or
       of sitting in a part of the park which is out of reach of balls traveling with
       sufficient velocity to cause harm. In any event, the duty seems to be one of little
       practical value. The injured person is always going to be one who is seated in
       an unscreened area and, who … would be precluded from recovering regardless
       of the reason why he or she elected to sit there.
Los Angeles Dodgers, 185 Cal. App. 3d at 182 (emphasis added).


                                                16
spectators while obstructing their view and making them feel more removed from the

action; or (c) moving all spectators at least 600 feet away from home plate in all

directions. 10 Third, ordinary negligence principles do not produce reliably acceptable

results in these circumstances because the risk of injury (and the extent of the harm) to

spectators is substantial, 11 yet the justification for not protecting spectators from that risk

can be expressed only in terms of the amusement or entertainment value of watching the

sport that brought the spectators to the stadium in the first place. 12

       Against this background, Anderson and Hudson (and dozens of Baseball Rule

cases around the country) represent a conscious decision to favor the collective interests

of all spectators by rejecting as a matter of law the individual claims of injured spectators.

Using the rules of premises liability and the rationale now identified as implied primary

assumption of the risk, these decisions protect the home team from liability for risks that

are inherent in watching a baseball game based on the team’s failure to take steps that

10
    Los Angeles Dodgers, 185 Cal. App. 3d at 181 (“As we see it, to permit plaintiff to recover
under the circumstances here would force baseball stadium owners to do one of two things: place
all spectator areas behind a protective screen, thereby reducing the quality of everyone’s view,
and since players are often able to reach into the spectator area to catch foul balls, changing the
very nature of the game itself; or continue the status quo and increase the price of tickets to cover
the cost of compensating injured persons with the attendant result that persons of meager means
might be ‘priced out’ of enjoying the great American pastime.”)
11
   One study found injuries from foul balls in major league ballparks occur at a rate of 35.1
injuries per million spectator visits. See When Spectators Are Injured, 2008 Den. U. Sports &
Ent. L.J. at 39 n.3. For teams like the Royals, with more than 1.7 million in home attendance
each season, this equates to approximately 60 injured fans per year.
12
   As one court noted, the “logical result of having these [baseball] cases governed by usual
invitor-invitee principles of liability [without adjusting for “open and obvious” risks] would be
that warned against in Akins: ‘[E]very spectator injured by a foul ball, no matter where he is
seated or standing in the ball park, would have an absolute right to go to the jury on every claim
of negligence.’” Detroit Tigers, Inc., 635 N.W.2d 219, 224-25 (Mich. App. 2001) (quoting
Akins v. Glen Falls City Sch. Dist., 424 N.E.2d at 534).


                                                 17
could defeat the reason spectators are there at all, i.e., to get as close as they can to the

action without interfering with the game they came to watch. 13

       But the rationale for this rule – and, therefore, the rule itself – extends only to

those risks that the home team is powerless to alleviate without fundamentally altering

the game or spectator’s enjoyment of it. As a result, the solid wall of authority in support

of the Baseball Rule is badly cracked in cases where a spectator is injured by a ball when

the game is not underway or where fans ordinarily do expect to have to keep a careful

lookout for balls or bats leaving the field. 14 This Court has not had to address such a

question and does not do so now.

13
    See Detroit Tigers, 635 N.W.2d at 222 (“there is inherent value in having most seats
unprotected by a screen because baseball patrons generally want to be involved with the game in
an intimate way and are even hoping that they will come in contact with some projectile from the
field (in the form of a souvenir baseball).”); Rudnick v. Golden W. Broadcasters, 156 Cal. App.
3d 793, 802 (1984) (“Reasonable screening is defined in the expectations of the fans and the
traditions of the national pastime itself” because “the chance to apprehend a misdirected baseball
is as much a part of the game as the seventh inning stretch or peanuts and Cracker Jack”); Akins,
424 N.E.2d at 533 (“many spectators prefer to sit where their view of the game is unobstructed
by fences or protective netting and the proprietor of a ball park has a legitimate interest in
catering to these desires”); Liability to Spectator, 82 A.L.R.6th at 417 (“Part of the experience of
attending a baseball game is that many of the dozens of baseballs used in each game are hit out
of play into foul territory, into the backstop and screens, and into the stands. Most fans would
love to return from a game with a souvenir of the actual play, and some even bring gloves with
them in the hope of making a catch.”). See also Murphy v. Steeplechase Amusement Co., 166
N.E. 173, 174 (N.Y. 1929) (Cardozo, C.J.) (“One who takes part in such a sport accepts the
dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk
of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. …
The timorous may stay at home.”).
14
    See, e.g., Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 881 A.2d 700, 709 (N. J.
2005) (deciding as a matter of law that, “in areas outside of the stands, including concourses and
mezzanines such as the one in this appeal, a commercial sports facility is no different than any
other commercial establishment, and we do not hesitate to apply general negligence principles”);
Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546, 551 (Pa. 1978) (deciding as a matter of law
that “one who attends a baseball game as a spectator [cannot] properly be charged with
anticipating as inherent to baseball the risk of being struck by a baseball while properly using an
interior walkway”). But see Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1177 (Nev.


                                                 18
       Moreover, even though the “no duty” rationale of the Baseball Rule applies to

risks inherent in watching a baseball game, the home team still owes a duty of reasonable

care not to alter or increase such inherent risks. 15 One example, useful both for its facts

and its analysis, is Lowe v. California League of Prof. Baseball, 56 Cal. App. 4th 112

(1997). There, the court began by explaining this “no duty” rationale:

       In the first instance, foul balls hit into the spectators’ area clearly create a
       risk of injury. If such foul balls were to be eliminated, it would be
       impossible to play the game. Thus, foul balls represent an inherent risk to
       spectators attending baseball games. Under Knight, such risk is assumed.

Id. at 123 (citing Knight v. Jewett, 834 P.2d 696, 698 (Cal. 1992)).

       In Lowe, however, even though the plaintiff was struck by a foul ball, he claimed

that his injuries were not caused by that inherent risk. Instead, the plaintiff claimed he

was prevented from watching for foul balls because he was repeatedly jostled and


2008) (barring claim as a matter of law because spectator was injured while eating in concession
area because “primary implied assumption of risk doctrine merely goes to the initial
determination of whether the defendant’s legal duty encompasses the risk encountered by the
plaintiff,” which is a question for the court); Loughran v. The Phillies, 888 A.2d 872 (Pa. Super.
Ct. 2005) (holding as a matter of law that, even though risk of being injured by a ball tossed into
the stands during a break in the game was not part of the sport of baseball, such risks were
inherent in watching professional baseball games because such “activities [by players] have
become inextricably intertwined with a fan’s baseball experience”); Sparks v. Sterling
Doubleday Enterprises, LP., 752 N.Y.S.2d 79, 80 (2002) (holding as a matter of law that team
owed no duty beyond screening seats behind home plate and was not liable to member of high
school band hit during batting practice while waiting to participate in pre-game ceremonies on
opening day).
15
    Edward C. v. City of Albuquerque, 241 P.3d 1086, 1097-98 (N.M. 2010) (“vast majority of
jurisdictions that have addressed the issue” hold that spectators “must exercise ordinary care to
protect themselves from the inherent risk of being hit by a projectile that leaves the field of play
and the owner/occupant must exercise ordinary care not to increase that inherent risk”); Knight v.
Jewett, 834 P.2d 696, 708 (Cal. 1992) (“Although [stadium owners] generally have no legal duty
to eliminate (or protect a [spectator] against) risks inherent in the sport itself, it is well
established that [owners] generally do have a duty to use due care not to increase the risks ...
over and above those inherent in the sport.”).


                                                19
distracted by the team’s dinosaur mascot. The court agreed that the Baseball Rule did not

bar such a claim:

       [T]he key inquiry here is whether the risk which led to plaintiff’s injury
       involved some feature or aspect of the game which is inevitable or
       unavoidable in the actual playing of the game. … Can [this] be said about
       the antics of the mascot? We think not. Actually, the … person who
       dressed up as Tremor, recounted that there were occasional games played
       when he was not there. In view of this testimony, as a matter of law, we
       hold that the antics of the mascot are not an essential or integral part of the
       playing of a baseball game. In short, the game can be played in the absence
       of such antics.

Id. (emphasis added).

       Accordingly, even though implied primary assumption of the risk precludes

recovery for injuries caused by the inherent risk of being hit by a foul ball while watching

a baseball game, Lowe holds that the jury can hold the team liable for such injuries if the

negligence of its mascot altered or increased that otherwise inherent risk and this

negligence causes the plaintiff’s injuries. See also Sheppard, 904 S.W.2d at 263-64

(even though the student cannot sue under implied primary assumption of the risk for

injuries resulting from inherent risk of a bad landing in high school long-jump contest,

the jury can hold the school district liable when the inherent risk of a bad landing was

altered or increased by defendant’s negligence in preparing the landing pit and this

negligence caused the student’s injuries). 16


16
   The Royals seek to distinguish Sheppard on the ground that it concerns participants rather
than spectators. This distinction is more apparent than real, however, because the implied
primary assumption of the risk always is evaluated in term of participants. Baseball Rule cases,
therefore, evaluate the inherent risks assumed by all who participate in the activity of watching a
baseball game. True, those risks are different from the ones assumed by those who participate in
the activity of playing baseball, but that is not a sufficient basis to ignore well-researched and


                                                20
       Accordingly, the proper application of implied primary assumption of the risk in

this case – unaffected by Gustafson – is this: if Coomer was injured by a risk that is an

inherent part of watching the Royals play baseball, the team had no duty to protect him

and cannot be liable for his injuries. But, if Coomer’s injury resulted from a risk that is

not an inherent part of watching baseball in person – or if the negligence of the Royals

altered or increased one of these inherent risks and caused Coomer’s injury – the jury is

entitled to hold the Royals liable for such negligence and, to the extent the reasonableness

of Coomer’s actions are in dispute, the jury must apportion fault between the parties

using comparative fault principles. This approach has been used in Missouri and around

the country.

       Therefore, in the sports context, under comparative fault, if the plaintiff’s
       injury is the result of a risk inherent in the sport in which he was
       participating, the defendant is relieved from liability on the grounds that
       by participating in the sport, the plaintiff assumed the risk and the
       defendant never owed the plaintiff a duty to protect him from that risk. If,
       on the other hand, the plaintiff’s injury is the result of negligence on the
       part of the defendant, the issue regarding the plaintiff’s assumption of that
       risk and whether it was a reasonable assumption of risk, is an element of
       fault to be compared to the defendant’s negligence by the jury.

Sheppard, 904 S.W.2d at 263-64 (emphasis added).




clearly written appellate decisions. Somewhat inconsistently, the Royals also argue that this
Court should follow Sheppard and allow the jury to decide the application of implied primary
assumption of the risk. The Court already has held that this issue is to be decided as a matter of
law, however, and the issue in Sheppard was causation, not inherent risk. A properly drafted
verdict director is all that is needed to present the issue of causation, not a separate and likely
confusing instruction regarding implied primary assumption of the risk.


                                                 21
III.   Implied Primary Assumption of the Risk is a Question of Law

       To this point, it appears that the Royals are in at least tacit agreement with the

Court’s analysis. The Royals invoke the doctrine of implied primary assumption of the

risk by name and contend that, under this doctrine, it owed no duty to protect Coomer

from the risk of injury from Sluggerrr’s hotdog toss because that is an inherent risk

Coomer assumed by attending a Royals game at Kauffman Stadium. The Royals

contend, however, that the question of which risks qualify as “inherent risks” for

purposes of implied primary assumption of the risk is a question of fact for the jury to

decide, not the court. The Court disagrees.

       As explained above, the doctrine of implied primary assumption of the risk

negates any duty the defendant otherwise may have owed the plaintiff. The question of

whether and to what extent the defendant owes a duty to the plaintiff is always a question

for the court, not the jury. Hoffman v. Union Elec. Co., 176 S.W.3d 706, 708 (Mo. banc

2005). This principle is no less applicable when the question of duty arises in the context

of implied primary assumption of the risk. See Krause, 787 S.W.2d at 711-12 (under

Missouri law, implied primary assumption of the risk “is not really an affirmative

defense; rather, it indicates that the defendant did not even owe the plaintiff any duty of

care”); Harris, 857 S.W.2d at 227 (holding that, even after Gustafson, the open and

obvious nature of the risks is an issue for the court to use “in determining a possessor of

land’s standard of care”).

       This answer is even clearer when the doctrine of implied primary assumption of

the risk arises in the context of claims by spectators at a sporting event. In such cases,


                                              22
this and others consistently have held that the question of whether a particular risk is or is

not an inherent part of watching the event is to be decided by the court as a matter of law.

See Anderson, 231 S.W.2d at 173 (holding as a matter of law that the risk of injury from

a foul ball is “clearly not an unreasonable risk to spectators which imposes a duty to warn

[or protect]”); Hudson, 164 S.W.2d at 323 (holding as a matter of law that, “if his invitee

knows of the condition or hazard there is no duty on the part of the proprietor to warn

him and there is no liability for resulting injury”). See also Akins v. Glens Falls City Sch.

Dist., 424 N.E.2d 531, 534 (N.Y. 1981) (rejecting view that the extent of the team’s duty

should be left to the jury because it “would mean that every spectator injured by a foul

ball, no matter where he is seated or standing in the ball park, would have an absolute

right to go to the jury on every claim of negligence”); When Spectators Are Injured, 2008

Den. U. Sports & Ent. L.J. at 42-46 (collecting cases holding, as a matter of law, that the

team owed no duty to injured spectators). 17

       Anderson, Hudson, and similar implied primary assumption of the risk cases

around the country answer this “inherent risk” question as a matter of law because, if that

question is left to each separate jury in each separate case, a team would never know for

sure what duty it owes to its spectators. For example, under the Royals’ approach,

17
   When the court determines that the risk is not an inherent one and, therefore, that implied
primary assumption of the risk does not apply, the question of whether the plaintiff was injured
by the defendant’s negligence remains a jury question. See Sheppard, 904 S.W.2d at 263-64
(school cannot be liable as a matter of law for injuries from inherent risk of a long-jumper’s bad
landing, but it was a question for the jury whether jumper’s injuries were caused by school’s
negligence in preparing the landing pit); Lowe, 56 Cal. App. 4th at 123 (team cannot be held
liable for spectator’s injuries from inherent risk of being hit by foul ball, but it was a question for
the jury whether spectator’s injuries were caused by team’s negligence in allowing mascot to
bump and distract fans during the game).


                                                  23
Sluggerrr could throw two consecutive hotdogs in precisely the same manner, hit two

spectators causing precisely the same injuries, and the Royals could be held liable for all

or some part of one spectator’s damages and escape all liability for the other spectator’s

damages solely because the latter jury found the risk of injury from Sluggerrr’s hotdog

toss to be an “inherent risk” and the former jury did not. Such conflicting results are

unacceptable.

       The reason courts – not juries – decide what duty a defendant owes is to ensure

that all similarly situated defendants are treated equally and, more importantly, to give

notice of these duties so that potential defendants will have an opportunity to adjust their

conduct accordingly. These principles of fair notice and equal treatment are fundamental

values in our legal system. Courts are well positioned to serve and protect such values;

juries are not. See Prosser and Keeton on Torts, at 236 (noting that “it is no part of the

province of the jury” to weigh the considerations of precedent and sound public policy

that inform decisions regarding the existence and extent of a defendant’s duty of care).

       The Royals’ argument that juries should determine whether a particular risk is

inherent simply in watching the game fails at an even more fundamental level. A

question of fact is submitted to a jury in a civil case if, but only if, the evidence regarding

that fact is such that reasonable jurors may reach contradictory conclusions. Here, the

dispute between the Royals and Coomer concerning whether the risk of injury from

Sluggerrr’s hotdog toss is one of the risks that is inherent in watching the Royals play

baseball is a policy debate, not an evidentiary one. To the extent there was any evidence

at trial relevant to this debate, that evidence was not specific to Coomer, or to his decision


                                              24
whether to attend this specific game and where to sit, or to similar decisions made by the

12,000 other spectators in the park that day. Instead, the evidence – and, more

importantly, the policy debate itself – will be the same in every case. The only thing that

will change is the jury (and potentially, under the Royals’ approach, the jury’s answer).

       Juries decide disputed questions of material fact, e.g., questions such as what the

plaintiff or defendant (or others around them) did or did not do, what the circumstances

surrounding this conduct were, and what the consequences of this conduct have been.

Such questions may be difficult to answer, but there is a right and wrong answer for the

jury to pursue. The question of whether being injured by Sluggerrr’s hotdog toss is a risk

inherent in watching a Royals home game, on the other hand, has no right or wrong

answer. It is a conclusion about a fact, not a fact itself. Juries do not decide such

questions; courts do.

       Finally, even the word “inherent” defies the Royals’ case-by-case approach. For a

risk to be “inherent,” it must be “structural or involved in the constitution or essential

character of something: belonging by nature or settled habit.” Webster’s Third New

International Dictionary (1966), at 1163 (emphasis added). A particular risk cannot be

“structural” or “involved in the constitution or essential character of something” one day

but not the next. Under this definition, once a risk is determined to be “inherent” in

something, it will remain so until there is a fundamental change in that thing’s

constitution or essential character.

       In Hudson and Anderson, the Court decided that the risk of a spectator being

injured by a foul ball at a baseball game was an inherent risk, i.e., that it was “structural”


                                              25
or “involved in the constitution or essential character” of watching baseball. This is why

the Court’s determinations in those cases were made as a matter of law, not fact, and this

is why those determinations have properly been binding on all similar claims since they

were made. As a result, the Court must approach the risk of being injured by Sluggerrr’s

hotdog toss the same way. Either that risk is “structural” and “involved in the

constitution or essential character” of watching a Royals game or it is not. It cannot be

both, any more than this Court can allow one jury to say it is and the next jury to say it is

not.

       Accordingly, this Court holds that the question of whether a risk is “inherent” for

purposes of the doctrine of implied primary assumption of the risk is not a question for

the jury. As a result, the question of whether being injured by Sluggerrr’s hotdog toss is

an “inherent risk” of watching a Royals home game must be answered as a matter of law.

IV.    Being Injured by Sluggerrr’s Hotdog Toss is Not a
       Risk Inherent in Watching Royals Baseball

       The Royals admit that, “[s]trictly speaking, this is not a baseball rule case”

because Coomer does not claim he was injured by a foul ball or loose bat. But, because it

claims the Hotdog Launch is a “common sense” activity, the Royals contend that the

same implied primary assumption of the risk rationale should apply and bar all recovery

by Coomer. According to the Royals, the risk to a spectator of being injured by

Sluggerrr’s hotdog toss shares the same essential characteristics as the other risks that this

Court (and many others) determined long ago were inherent in watching a baseball game




                                             26
in person, i.e., risks that a spectator will be injured by a flying ball or bat. The Court

disagrees.

       The rationale for barring recovery for injuries from risks that are inherent in

watching a particular sport under implied primary assumption of the risk is that the

defendant team owner cannot remove such risks without materially altering either the

sport that the spectators come to see or the spectator’s enjoyment of it. No such

argument applies to Sluggerrr’s hotdog toss. Millions of fans have watched the Royals

(and its forebears in professional baseball) play the National Pastime for the better part of

a century before Sluggerrr began tossing hotdogs, and millions more people watch

professional baseball every year in stadiums all across this country without the benefit of

such antics.

       Some fans may find Sluggerrr’s hotdog toss fun to watch between innings, and

some fans may even have come to expect it, but this does not make the risk of injury

from Sluggerrr’s hotdog toss an “inherent risk” of watching a Royals game. As noted

above, “inherent” means “structural or involved in the constitution or essential

character of something: belonging by nature or settled habit,” Webster’s Third New

International Dictionary (1966), at 1163 (emphasis added). There is nothing about the

risk of injury from Sluggerrr’s hotdog toss that is “structural” or involves the

“constitution or essential character” of watching a Royals game at Kauffman Stadium.

       The Royals concede that Sluggerrr’s hotdog toss has nothing to do with watching

the game of baseball but contend that the Hotdog Launch is a well-established (even

customary) part of the overall stadium “experience.” In support, the Royals cite cases


                                              27
that have applied the Baseball Rule to risks that were not created directly from the game.

These cases do not support the Royals’ argument.

       In Loughran v. The Phillies, 888 A.2d 872 876-77 (Pa. 2005), because a plaintiff

was injured when a fielder tossed the ball into the stands after catching the last out of the

inning, the court held that implied primary assumption of the risk barred the plaintiff’s

claims. In rejecting the plaintiff’s claim that the Baseball Rule should not apply because

the throw was not part of the game itself, Loughran holds that – even though the “‘no

duty’ rule applies only to ‘common, expected, and frequent’ risks of the game” – the link

between the game and the risk of being hit with a ball tossed into the stands by a player is

undeniable. Id. at 876. 18 Baseball is the reason centerfielder Marlon Byrd was there, just

as it was the reason the fans were in the stands (including the many who were yelling for

Byrd to toss the ball to them). Here, on the other hand, there is no link between the game

and the risk of being hit by Sluggerrr’s hotdog toss. The Hotdog Launch is not an

inherent part of the game; it is what the Royals do to entertain baseball fans when there is

no game for them to watch. Sluggerrr may make breaks in the game more fun, but

Coomer and his 12,000 rain-soaked fellow spectators were not there to watch Sluggerrr

toss hotdogs; they were there to watch the Royals play baseball.



18
    In Dalton v. Jones, 581 S.E.2d 360, 362 (Ga. App. 2003), the court rejected claims against a
fielder who tossed a ball into the stands between innings based on similar reasoning: “Whether
the ball was thrown or tossed during an inning of play or between innings lacks legal
significance because, as the trial court noted, ‘this throw occurred during a time which was
necessary to the playing of the game, during which time the Plaintiff has assumed the risk of
injury from bats, balls, and other missiles.’” See also Pira v. Sterling Equities, Inc., 16 A.D.3d
396, 790 N.Y.S.2d 551 (2005) (dismissing claims by fan injured when pitcher tossed ball into
stands between innings).


                                                28
       Somewhat closer to the mark – but still inapposite – is the Royals’ reliance on

Cohen v. Sterling Mets, L.P, 17 Misc. 3d 218 (N.Y. Sup. Ct. 2007), aff’d 870 N.Y.S.2d

914 (N.Y. App. Div. 2009). A vendor sued the team for injuries caused by a fan who hit

the vendor while diving for a souvenir T-shirt that had been tossed into the crowd. The

court dismissed these claims, stating: “When a ball is tossed into the stands by a player

many spectators rush toward the ball in hopes of getting a souvenir, just as what allegedly

occurred here during the t-shirt launch.” Id. at 220.

       The Royals’ reliance on Cohen highlights one of the basic flaws in its effort to use

implied primary assumption to bar Coomer’s claims, and it shows the importance of

correctly identifying the risks and activity in each case. As explained above, what makes

a risk “inherent” for purposes of this doctrine – and what distinguishes such risks from

those at issue in an implied secondary assumption of the risk case – is that the risks are so

intertwined (i.e., so “structural” or involved in the “constitution or essential character”)

with the underlying activity that the team cannot control or limit the risk without

abandoning the activity. In Cohen, because the Mets could not control how fans reacted

to the T-shirt launch, that reaction was an inherent risk – not of watching a baseball game

but – of taking part in the T-shirt launch (which the plaintiff’s work required him to

do).19 Here, on the other hand, not only is being injured by Sluggerrr’s hotdog toss not


19
   Lowe also is instructive on this point. Because the team had no ability to eliminate the risk of
being hit by a foul ball without fundamentally altering the game or the fans’ access to it, the team
could not be liable for injuries caused by that risk. The team was in control of its mascot,
however, which is why the court held the team could be liable when the mascot’s actions made
the risk of injury from a foul ball greater than it was inherently. Lowe, 56 Cal. App. 4th at 123.
Here, the evidence was sufficient for the jury to find both that Sluggerrr was negligent and that


                                                29
an inherent risk of watching a Royals game, it is not an inherent risk of the Hotdog

Launch. As discussed below, the Royals concede that there are negligent and

non-negligent ways of tossing a hotdog and that Sluggerr (for whom the Royals are

responsible) can control which he uses.

       Accordingly, the Court holds as a matter of law that the risk of injury from

Sluggerrr’s hotdog toss is not one of the risks inherent in watching the Royals play

baseball that Coomer assumed merely by attending a game at Kauffman Stadium. This

risk can be increased, decreased or eliminated altogether with no impact on the game or

the spectators’ enjoyment of it. As a result, Sluggerrr (and, therefore, the Royals) owe

the fans a duty to use reasonable care in conducting the Hotdog Launch and can be held

liable for damages caused by a breach of that duty. 20 Sluggerrr’s tosses may – or may

not – be negligent; that is a question of fact for the jury to decide. But the Royals owe

the same duty of reasonable care when distributing hotdogs or other promotional




his negligence directly caused Coomer’s injuries, eliminating any need to invoke the Lowe
analysis of increasing an otherwise inherent risk.
20
    This observation highlights another – perhaps even more basic – flaw in the Royals’
argument. From the very beginning, Baseball Rule cases holding that the home team has “no
duty” to protect spectators recognized that balls and bats can go flying into the seats even though
the batter, pitcher, or fielder is using reasonable care. The risk that is “inherent” in watching this
game is that even careful players cannot always control the flight of the ball or keep control of
the bat. To eliminate all risk of that occurring, the team’s only choice is to change the game or
the fans’ access to it. Here, on the other hand, nothing (except the Royals) compels Sluggerrr to
throw hotdogs at the spectators. Perhaps the Royals are correct and there is a non-negligent way
to throw a hotdog at a patron, but safety always can be ensured simply by handing the food to the
customer … as waiters, waitresses, and concessionaires prove millions of times every day. So, if
Sluggerrr and the Royals decide to engage in the riskier conduct of throwing the food, they
cannot complain that they have to persuade a jury that such conduct was reasonable anytime a
fan is injured.


                                                 30
materials that it owes to their 1.7 million fans in all other circumstances, excepting only

those risks of injury that are an inherent part of watching a baseball game in person.

V.     The Jury Instructions Were Prejudicial

       As held above, the trial court erred in submitting to the jury the question of

whether the risk of injury from Sluggerrr’s hotdog toss was an inherent risk of watching a

baseball game at Kauffman Stadium. The Royals contend that the jury’s verdict and

resulting judgment need not be vacated, however, because this instructional error did not

affect the outcome of this case. The Court disagrees.

       The crux of the Royals’ argument is that the jury must have decided that Sluggerrr

was not negligent in tossing the hotdog that injured Coomer. This is incorrect. The

essence of an affirmative defense is that it precludes liability to the plaintiff that

otherwise would be justified by the facts. In this case, therefore, the Royals’ attempt to

invoke the assumption of the risk doctrine can be paraphrased as “Sluggerrr was

negligent in injuring Coomer, but Coomer is barred from recovering any damages

because he knowingly and intelligently assumed the risk of such an injury.” As

explained above, however, the affirmative defense aspect of assumption of the risk, i.e.,

implied secondary assumption of the risk, did not survive the advent of comparative fault.

Once the jury finds that the defendant was negligent, Gustafson prohibits any further

inquiry into the reasonableness or unreasonableness of the plaintiff’s conduct as a basis

for barring the plaintiff’s claim entirely. Instead, that inquiry now occurs (if at all) only

in the context of comparative fault. The part of assumption of the risk that survived




                                               31
Gustafson, i.e., implied primary assumption of the risk, was never an affirmative defense

or a jury question, and, as explained above, it does not apply here.

       The language of the instructions in this case also contradicts the Royals’ argument.

The Royals contend that Instruction No. 11 only permits the jury to resolve the question

of assumption of the risk in its favor if the jury determines that Sluggerrr’s throw was not

negligent. That is not what this instruction says. It refers only to the “manner in which

Sluggerrr threw the hotdog,” but it does not characterize that manner or ask the jury to do

so. More importantly, the jury would never have had any occasion to apply Instruction

No. 11 unless and until it had found the Royals (and Sluggerrr) were negligent under

Instruction No. 9. If the jury determined Sluggerrr was not negligent, Instruction No. 9

would have been the end of its analysis. But, if the jury determined that Sluggerrr was

negligent under Instruction No. 9, then – and only then – would the jury have reason to

consult the “tail” at the bottom of Instruction No. 9 sending it to Instruction No. 11.

       The Royals also argue that the judgment should be affirmed because the jury

might have entered its verdict for the Royals on another basis entirely removed from

assumption of the risk. For instance, because there was no direct evidence that Coomer

was injured by the hotdog Sluggerrr threw, the jury may have concluded that Coomer

was not hit by the hotdog but by another fan who was reaching for the hotdog. The jury

could have reached such a conclusion, of course, just as it could have based its verdict on

some other factor that was not influenced by the trial court’s error. But the mere

possibility that an error was not prejudicial is not sufficient.




                                              32
       Here, the Court holds that Coomer has shown a sufficient likelihood of prejudice

to justify vacating the judgment and remanding the case. Instruction No. 11 not only put

an issue (implied primary assumption of the risk) to the jury that must be decided by the

court as a matter of law, it created an unacceptable risk that the jury found the Royals

negligent but then did not assess at least some percentage of the fault to the team because

that is what the introductory phrase to Instruction No. 11 told the jury to do.

Accordingly, the judgment is vacated, and the case is remanded.

VI.    Issues that Likely Will Arise in a Retrial

       Coomer claims that the trial court erred in submitting the Royals’ affirmative

defense of comparative fault to the jury and in refusing to submit Coomer’s alternative

claims that the Royals were negligent in training and/or supervising Sluggerrr’s hotdog

toss. Because the judgment must be vacated and the case remanded as a result of the trial

court’s errors, the Court does not need to address Coomer’s other claims. Given that

these issues likely will recur at retrial (if there is one), however, the Court will address

them here.

       First, the Court holds that the evidence was sufficient to justify submitting

Coomer’s comparative fault to the jury. Coomer contends that, because he was “just

sitting there,” this cannot constitute negligence. The jury might reach that conclusion

and, as a result, not attribute any percentage of the fault to Coomer. But that is not the

only conclusion supported by this evidence. The evidence also was sufficient for the jury

to find that Coomer acted unreasonably by: (a) watching Sluggerrr go into his leonine

wind-up in preparation for a behind-the-back hotdog toss and then (b) choosing the


                                              33
precise moment that Sluggerrr was releasing the hotdog to let his gaze – and attention –

wander elsewhere. The jury may find that this failure to keep a careful lookout, among

other reasons, was sufficient to assess some percentage of fault to Coomer.

       Second, Coomer contends that the trial court erred in refusing to allow him to

submit multiple theories on which the jury could hold the Royals liable for his damages.

The trial court did not dismiss Coomer’s claims for negligent training and supervision as

unsubstantiated. Instead, citing McHaffie v. Bunch, 891 S.W.2d 822 (Mo. banc 1995),

the trial court simply ruled that Coomer was entitled to submit one, but only one, theory

on which the jury could hold the Royals liable for Sluggerrr’s negligence (e.g.,

respondeat superior, negligent training, or negligent supervision). The trial court was

correct.

       As explained in McHaffie, “once an employer has admitted respondeat superior

liability … it is improper to allow a plaintiff to proceed against the employer on any other

theory of imputed liability.” Id. at 826 (citations omitted). The Court’s rationale for this

decision was that, if “all of the theories for attaching liability to one person for the

negligence of another were recognized and all pleaded in one case where the imputation

of negligence is admitted, the evidence laboriously submitted to establish other theories

serves no real purpose.” Id.

       The reasoning of McHaffie prohibits a plaintiff from going to the jury on multiple

alternative theories of imputed liability. Once the jury is told that a particular defendant

is liable for the negligent actions of someone else, no purpose is served by explaining to

the jury alternative ways to reach the same result. Here, even though claims of negligent


                                              34
training or supervision may not strictly be theories of imputed liability in the same way

that the doctrine of respondeat superior is, Coomer still must show that Sluggerrr was

negligent before the jury can award him any of his damages under these theories. In

other words, the team may have been negligent in training or supervising Sluggerrr but,

unless Sluggerrr acted wrongfully in injuring Coomer, there is no basis for the Royals’

liability. Here, there was no need to explore those alternate paths. Because the Royals

conceded the application of respondeat superior, Coomer’s recovery was certain as long

as he could prove Sluggerrr’s negligence and causation. As there was no purpose in

allowing Coomer to pursue alternative grounds for the same result, the trial court did not

err in its application of McHaffie.

       Even though the Court holds that the trial court’s application of McHaffie was not

error, it is worth noting how prejudicial this ruling was in the context of the trial court’s

errors regarding assumption of the risk. McHaffie assumes that a plaintiff does not need

both a belt and suspenders when one basis of liability is established. As discussed above,

however, Instruction No. 11 allowed the jury to find for the Royals even though the jury

determined under Instruction No. 9 that Coomer was injured as a result of Sluggerrr’s

negligent conduct. Instruction No. 11, therefore, deprived Coomer of the benefit that

McHaffie assumes is present. McHaffie was designed to save the time and avoid the

confusion that comes with allowing a plaintiff to demand both belt and suspenders in

submitting his claim to the jury. But when Instruction No. 11 improperly sliced through

Coomer’s belt, he was sorely prejudiced by the trial court’s refusal to allow him

suspenders under McHaffie.


                                              35
        If this case is tried again on remand, the instructional error will not recur and,

therefore, there will be no prejudice from the proper application of McHaffie. If the jury

finds that Sluggerrr failed to use reasonable care when he threw the hotdog at Coomer

and injured him, it will assess a percentage of fault to the Royals as required by

Instruction No. 9, and it will do so without the distraction and mixed-signals of

Instruction No. 11. No other theory of liability will be needed by, or useful to, Coomer.

Finally, if the evidence on retrial is the same as here, the jury may conclude that Coomer

failed to use reasonable care to protect himself from Sluggerrr’s negligence (failing to

keep an adequate lookout or otherwise) and, on that basis, it could assess a percentage of

fault to Coomer under a proper comparative fault instruction.

                                         Conclusion

        For the reasons set forth above, this Court vacates the judgment and remands the

case.




                                                    _________________________________
                                                    Paul C. Wilson, Judge



All concur.




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