Last year, we talked about the so-called “baseball rule,” which protects baseball teams from liability for injuries caused by foul balls. To wit:
As explained in the Restatement, there exists in the law a doctrine called “assumption of the risk.” In the context of baseball, that basically means that if you sit in an area without protective netting and you know it’s a possibility that a foul ball might come your way, you can’t sue the team for getting injured by that foul ball. As one court put it in a case called Edward C. v. City of Albuquerque, a fan “must exercise ordinary care to protect himself or herself from the inherent risk of being hit by a projectile” — even if that projectile is traveling upwards of 100 mph.
There’s a really excellent write-up on this that you can read here. In short, however, this “baseball rule” represents the majority rule in the United States. If a foul ball comes your way at a ballpark, the law basically says you should have seen it coming. You’ll probably find language on your ticket saying you assume the risk of injury by foul ball, like the Yankees have on theirs.
But baseballs aren’t the only projectiles spectators will encounter during baseball games. Earlier this month, the Associated Press reported on a lawsuit filed against the Houston Astros for a fan injury caused by a T-Shirt Cannon:
A woman has sued the Houston Astros for more than $1 million, saying that a T-shirt cannon by the team’s mascot at a game last season broke her finger.
The Houston Chronicle reports that Jennifer Harughty alleges that the mascot, who is named Orbit, “shattered” her left index finger during a game last July when a T-shirt fired from a “bazooka style” cannon into the stands struck her finger.
The Astros said in a statement Tuesday the team is “aware of the lawsuit with allegations regarding Orbit’s T-shirt launcher. We do not agree with the allegations. The Astros will continue to use fan popular T-shirt launchers during games. As this is an ongoing legal matter, we will have no further comment on this matter.”
The Chronicle reported court records said Harughty was seated in the middle of the first deck behind the third base line when the incident occurred. The lawsuit said the fracture required two surgeries to repair.
This is a fascinating case. The plaintiff, Harughty, evidently suffered serious injuries to a finger as a result of her hand being struck by a T-shirt launched from the cannon. We know from our discussion last year that, in the absence of protective netting, Harughty likely wouldn’t have recourse against the team had her injury been caused by a foul ball. But what about this very different kind of projectile?
Lawyers have been discussing the potential liability associated with T-shirt cannons for years – basically since they were invented. And their origin is quite a story:
But to understand how we got here, we need to go back to the mid-’90s, when the San Antonio Spurs changed in-arena entertainment forever with the invention of the T-shirt cannon. It was actually their mascot, or rather the man who used to wear it, Tim Derk, who created the first model. The original, made of cast iron, was gaudy, crude, and weighed about 90 pounds, but it got the job done. Before, t-shirts could only travel as far as the arm of a cheerleader or mascot would allow, and even teams that employed the use of slingshots had a hard time using them with much accuracy or reaching fans in the cheap seats. But Derk’s model was powered by a carbon dioxide canister he wore on his back and worked much the way a paintball gun does, which allowed him to launch shirts into the upper deck with ease.
Sports lawyer and law professor Jordan Kobritz, in an interview back in 2012, talked about the legal ramifications of projectiles being launched into the stands in the context of the Philadelphia 76ers’ new T-shirt gun:
What about non-game related injuries from t-shirt or hot dog guns? Does an injured fan from one of those promotions have a case?
The short answer is yes…and no! As we know, anyone can sue anyone for anything. Courts will examine situations such as this using the negligence theory. Once a plaintiff proves the elements of negligence are present, the defendant (usually the team or stadium) is allowed to raise the defense of assumption of the risk. Is it reasonable to assume that if you attend a sporting event you might be hit by a projectile expelled from a “gun?” Today, the answer is probably yes. However, there exists an understanding that the risk is reasonably related to the activity.
The Philadelphia 76ers unveiled a new t-shirt cannon that is a beast. Do you think it is a good idea? Do you think they probably have insurance for it?
The cannon in the photo looks like an artillery gun! I don’t know how much firepower the gun generates or if a t-shirt shot from this gun has the potential to hurt a fan any more than a t-shirt shot from less powerful guns. A photo of this weapon, introduced into evidence, is likely to influence a jury! No, I do not think it’s a good idea to incorporate a gun like this into your game promotions. But there are people (fans) who love the excitement – and potential danger – inherent in a promotion like this. I’m sure the 76ers have insurance to cover fan injuries, among other risks. Whether their premiums will go up after introducing this gun will depend on the insurance company’s evaluation and/or future claims history.
The T-shirt cannon Kobritz was talking about was, “a double-barreled T-shirt Gatling gun created by a company called FX in Motion that specializes in sports entertainment equipment. The team announced the new in-game feature via a 461-word press release, which claimed that the shirt was capable of firing 100 t-shirts every 60 seconds.”
Kobritz was right to be concerned. Years earlier, then-law student Scott Kitei wrote a law journal article on that exact subject, inspired by an accident involving his father. (HeinOnline subscription required and recommended.) There, Kitei argued that the rule insulating teams from liability for foul balls didn’t extend to T-shirts launched from cannons because they were – and this is key – incidental to the game:
For example, in California a spectator at a Class A baseball game was seriously injured when a foul ball struck him in the face during the game.” While spectators who are struck by batted balls during the course of a game are usually unable to recover for their injuries, in this case the team’s mascot, “Tremor,” distracted the plaintiff during play by repeatedly touching the plaintiff with his tail.” The plaintiff turned toward the mascot, and “[in the next moment, just as plaintiff returned his attention to the playing field, he was struck by a foul ball before he could react to it. Although the trial court granted the defendant’s summary judgment motion, the California Court of Appeals reversed. The appellate court stated that the standard to be applied was whether the antics of the mascot increased the “inherent risks to which spectators at baseball games are unavoidably exposed.” The court held: “As a matter of law … 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…. Whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.”
Kitei noted – using examples including The Simpsons – that the manner in which the projectile left the field mattered. “[I]t is implied when the court says “there is an inherent risk of objects leaving the playing field that people know about when they attend baseball games,” they are only referring to objects leaving the playing field because of the actions of the athletes themselves.”
Kitei’s note sent shock waves through the legal world, and his reasoning, though controversial, has since been adopted by courts across the country. A few years ago, in a case called Coomer v. Kansas City Royals Baseball Corp., a fan sued the Royals after being hit in the eye by a hot dog thrown by the mascot. The Royals invoked the baseball rule, argued that the hot dog was a reasonably expected projectile like a foul ball, and won the trial. The Missouri Supreme Court, however, disagreed:
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.
Put simply: the point of attending a live baseball game is to watch athletes bat at and throw baseballs, the point of driving a bumper car is to bump, the point of attending Burning Man is to participate in a “commemorative ritual” involving a giant bonfire; so batting, throwing, bumping, and bonfires cannot be eliminated from these activities. But . . . having souvenirs tossed in one’s direction may or may not enhance the experience depending on one’s preference. . . .
And Canadian courts began to reach the same conclusions – that T-shirt cannons weren’t such an instrumental part of the game that the baseball rule would protect the team from liability.
All of that being said, Texas courts continue to enforce one of the strictest implementations of the baseball rule in the United States. As such, a Texas court may consider a T-shirt to be the same as any other projectile. At the same time, Kitei’s reasoning has proved persuasive in a number of courts across the country – and with good reason. The manuals for these T-shirt launchers contain warnings not to shoot T-shirts directly at people due to a “risk of serious injury or death.” These launchers aren’t a part of an ordinary baseball game – as the Missouri Supreme Court noted, an ordinary baseball game includes foul balls, not foul T-shirts. And the launchers pack a lot of power; as you can see from this video, the Mets’ T-shirt cannon can launch a shirt over 200 feet with ease. (Do not point a T-shirt gun at a person, as they do in the video. Just don’t. Someone can get badly hurt.)
So what we have here is a newly developing area of law, and Texas, as one of the first large states to weigh in, will have a lot to say about what direction it takes moving forward. This is the first major test of the baseball rule in Texas with respect to a non-baseball projectile in years. It will be fascinating to see how the courts come down on this issue.
Sheryl Ring is a litigation attorney and General Counsel at Open Communities, a non-profit legal aid agency in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.