Tort Law

Editor:
Heidi Doerhoff Vollet, Esquire

Where fan was struck in the face with a hot dog thrown by team’s mascot, trial court erred in allowing defense of primary implied assumption of risk because being hit in the face with a hot dog is not the type of risk inherent in attending a baseball game. There was sufficient evidence to support jury instruction on comparative fault. Plaintiff could not assert independent claim for negligent supervision and training because his negligence claim also rested on imputed liability, and liability for the same action may not be imputed to the employer on more than one basis. John Coomer v. Kansas City Royals Baseball Corp., No. 73984 and 74040 (Mo. App. W.D., January 15, 2013), Newton, P.J.

Mr. Coomer sued the Kansas City Royals, alleging negligence, after he was hit in the eye by a hot dog thrown by the Royals’ mascot while attending a baseball game. Mr. Coomer had been to several games at the stadium in the past, and was aware that the hot dog throw (which had occurred routinely since 2000) was occurring, but looked away momentarily. Mr. Coomer believed that the hot dog had been thrown overhand instead of tossed under hand like the majority of the mascot’s throws. A jury found Coomer to be completely at fault.

On appeal Coomer alleges that the trial court erred in instructing the jury on the Royals’ defenses of implied assumption of risk and comparative fault, and in refusing to instruct the jury on his claims of negligent supervision and training.

Held: Reversed and remanded.
The trial court erred in instructing the jury on primary implied assumption of risk. The risk of being hit with a hot dog (as opposed to the risk of being hit with a baseball) is not a risk that is inherent to watching a baseball game. The fact that Coomer was aware that the hog dog throws were routinely conducted at Royals games does not make it an inherent risk.    

The trial court did not err in allowing the jury to be instructed on comparative fault. There was sufficient evidence from which the jury could have found that Coomer voluntarily chose to remain in the area where the hot dogs were being thrown despite being aware of the risk, or that he unreasonably failed to appreciate the risk.

Finally, the trial court did not err in refusing to instruct the jury on Coomer’s theory of negligent supervision and training. Once an employer has admitted respondeat superior liability (as the Royals did here), the plaintiff cannot proceed on any other theory of imputed liability. Coomer did not allege an independent negligent act by the Royals; rather, his entire theory rested on imputed liability for the mascot’s negligent actions.


Editor:
Keith A. Cutler, Esquire

Release which released “any Event sponsors” of a racing event was not ambiguous and was enforceable against defendant sponsor, even though (1) it did not specifically name the defendant sponsor, and (2) the defendant sponsor did not become a sponsor until after the date the release was signed.   Holmes v. Multimedia KSDK, Inc., No. 98466 (Mo. App. E.D., January 15, 2013), Crane, P.J.

Prior to participating in the Susan G. Komen Race for the Cure, Plaintiff signed a release in which Plaintiff agreed to release from liability for injury “any Event sponsors and their agents and employees, and all other persons or entities associated with this Event. . . .”   While participating in the Race, Plaintiff tripped over an audio-visual box placed on the ground by Defendant television station.  Plaintiff sued the television station for her injuries.  Defendant station filed a motion for summary judgment, contending that Plaintiff’s release barred her cause of action.   Plaintiff claimed that the television station was not covered by the release because the station (1) was not specifically identified in the release as an Event Sponsor, and (2) had not yet signed on to be a sponsor at the time Plaintiff executed the release. The trial court granted summary judgment and Plaintiff appealed.

Held
: Affirmed. Relying on Alack v. Vic Tanny International of Missouri, Inc., 923 S.W.2d 330 (Mo. banc 1996), Plaintiff argued that Missouri law requires releases of claims for future negligence to be specific and unambiguous.   Because Defendant television station was not specifically named in the release, and was not even a sponsor when the release was signed, Plaintiff maintained that the release was ambiguous with respect to whether it covered claims against the station.   The court of appeals, however, reasoned that Alack only required that the words “negligence” or “fault” be used conspicuously in a release, such that there is a clear and unmistakable waiver and shifting of risk.  Alack does not require that individual tortfeasors be specifically identified.  The phrase “any Event sponsors and their agents and employees” was sufficiently clear and unambiguous to relieve from liability all event sponsors, named or unnamed, present or future.   Therefore, the trial court’s grant of summary judgment was proper.


The “pre-impact terror” experienced by a decedent prior to an airplane crash is compensable in a wrongful death action.   Delacroix v. Doncasters, Inc., No. 97375 (Mo. App. E.D., January 15, 2013), Norton, J.

Six persons died in an airplane crash; five of them died upon impact, and the sixth died three days later .   Their respective families brought a wrongful death action against the manufacturer of one of the engine parts alleged to be defective .   At trial, with respect to each of the five who died upon impact, the damages instruction stated that the jury could compensate Plaintiff for any damages that Plaintiff and Decedent sustained . . . as a direct result of the fatal injury to Decedent.”  (Emphasis added).  Defendant objected to this instruction on the ground that § 537.090 RSMo, only allows a plaintiff to recover for the pain and suffering of a decedent if the decedent experienced pain and suffering between the time of the injury and death.   Because the five who died upon impact did not experience any pain and suffering between the time of impact and death, Defendant argued that the damages instruction was erroneous. The trial court overruled Defendant’s objection.  The jury returned a verdict in favor of Plaintiffs for $28 million, and Defendant appealed.

Held: Affirmed.
Plaintiffs introduced evidence to establish that, for 52 seconds prior to the crash, the decedents experienced horrific pre-impact terror, described by Plaintiffs’ expert as “a set of sensations, feelings and emotions a person experiences when that person feels death is imminent.”   The court of appeals determined that, although actual death was caused by the impact of the crash, “there was substantial evidence that Decedents’ injuries occurred prior to the impact of the crash, at the time the right engine failed.” (Emphasis added). Relying on Blum v. Airport Terminal Services, Inc., 762 S.W.2d 67 (Mo. App. E.D., 1988) – which held that pre-impact terror is compensable under § 537.090, RSMo – the court concluded: “we decline to construe § 537.090 to disallow recovery of damages for pain and suffering that were determined to be the direct result of [Defendant’s] actions merely because that pain and suffering occurred prior to the crash.”