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Legal Update: When Bad Things Happen To Good Fans


Aired 4/5/11

On this day of the Padres season home opener, our legal update salutes sports fans. They cheer, they moan, they celebrate victory and they take defeat on the chin, along with the occasional foul ball. They also, occasionally sue. Our legal analyst Dan Eaton is here to explain how the law gets involved when bad things happen to good fans.

On this day of the Padres season home opener, our legal update salutes sports fans. They cheer, they moan, they celebrate victory and they take defeat on the chin, along with the occasional foul ball. They also, occasionally sue. Our legal analyst Dan Eaton is here to explain how the law gets involved when bad things happen to good fans.


San Diego attorney Dan Eaton

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This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

CAVANAUGH: I'm Maureen Cavanaugh and you're listening to These Days on KPBS. On this day of the Padres' season home opener, our legal update absolutes sports fans of they cheer, they moan, they celebrate victory, and they take defeat on the chin along with the occasional foul ball. They also occasionally sue. Our legal analyst, Dan Eaton, is here to explain how the law gets involved when bad things happen to good fans?

EATON: Right, Maureen. This is gonna be a fun one I think, today, even though some of the injuries that are involved are not so often.

CAVANAUGH: Indeed they're not. Well, I'm glad you're here, dap.

EATON: Sure.

CAVANAUGH: To bring us through this. Our first case focuses on a legal action early in the history of the San Diego Padres. Dan, this case even predates the Padres as a major league team.

EATON: It does. And this is a little Padres history, actually. The Padres started playing under that name by a vote of the fan, by the way, who named them Padres as a minor league franchise in what was called the Pacific coast league back in 1936. That makes this technically the team's 75th anniversary, although the team kid not start playing in the major leagues until 1969. One of the minor league players, on of its stars, was an 18-year-old local boy named Ted Williams who played for the minor league team before going on to the Boston Red Sox where he played his major league career. Anyway, the case we discussed takes us back in 1938, Franklin Roosevelt was president, [] in what is now the cruise ship terminal parking lot located at Broadway and harbor.

CAVANAUGH: Okay. So you set the scene. What can you tell us about this case that has come to be called the case of the flying bat?

EATON: Right. Exactly. It's a case that involve aid spectator by the name of Martha rat cliff who was attending a game at lane field between the Padres, and the visiting Sacramento Sollins, also a visiting team. [CHECK AUDIO] passageway ran along the front of the home base, of the grand assistant between home plate and first base of the central part of the grandstand located behind home plate was protected by a 30 food wide wire screen. And that's where she had her tickets. Shortly before the game began, when the Sacramento team was taking batting practice, Ms. Rat cliff was walking along the way [CHECK AUDIO] lefty swung and missed the ball. So the bat went flying out of his hands, and what happened? Well, you probably guessed it, actually. The bat hit Ms. Rat cliff who was at the time just beyond the protected area where her assigned seat was located. The accident she claimed would not have happened had the screen been extended 2 or 3 feet in the direction from which she was walking issue she was injured, and she did sue.

CAVANAUGH: Okay. So in this case of the flying bat, who did Ms. Rat cliff sue.

EATON: Well, she sued the Padres because they had the stadium. She sued the Sacramento Solins, and she also sued the batter who let the bat slip. She claimed that the batter was somehow negligent in tossing the bat and that the Sacramento club was responsible. The Padres, she said were legally responsible for injuries because they should have protected the entrance passageway where she encountered this flying bat.

CAVANAUGH: So what happened when this case was tried by a San Diego jury?

EATON: Well, the jury found in favor of the Sacramento solins and the batter. But the Padres were not so lucky on this day, Maureen, and the jury found in favor of Ms. Rad cliff and awarded her $2,000, the equivalent of about $31,000 in $2,011, just to put that in perspective, that was roughly ten percent of the cost of outfitting lane field for the use of the Padres as a bait ball club, it was being used by the Navy before that. It is no surprise then that the Padres appealed the judgment against the team.

CAVANAUGH: That's a lot of money in those days. So the team whose player actually let go of the bat was not liable. But the Padres were.

EATON: Right.

CAVANAUGH: So what was the basic legal principle that the Court of Appeal had to apply?

EATON: Well, the basic principle was a legal doctrine called assumption of the risk. The general rule then and now is that one of the natural risks of attending a baseball game is that fans assume the risk of flying walls and flying objects when they attend a game. And it's the risk of being hit by batted balls and throwing balls. Baseball teams cannot prevent all such injuries. Everybody wants that. Their only duty is to exercise ordinary care in protecting a guest's foreseeable risk. So the question before the jury was, was this a foreseeable risk? Their own duty was to exercise reasonable risk -- exercise against reasonable risk and to take cautions against it, and that duty is satisfied, according to the Court of Appeal, quote, when screened seats are provided for as many as may reasonably be expected to call for them on any ordinary occasion. A fan who voluntary occupies a seat outside of the area thus protected assumes the natural and well known risk of being struck by thrown or batted balls, close quote. The Court made it clear though that the management did have a duty to protect that part of the grandstand behind and near home plate where the greatest danger from flying balls exist, close quote.

CAVANAUGH: Now, this case involved not a flying ball but a flying bat. Did that make any difference.

EATON: It really didn't. The court concluded that the same principle basically applied and the padres conceded that they owed ms. Radcliff a duty to protect her from flying bats in the area where it was foreseeable they would be. But that was the whole question. The Padres' main argument on appeal, Maureen be was that the team could not reasonably have foreseen that the flying bad would hit Ms. Rad cliff. Specifically what the team contended was that there was no evidence at trial that a bat had ever quote been known to travel at the exact angle and for the exact existence for which this one did.

CAVANAUGH: So the Padres said they had no way of knowing that that bat would ever go into that area. How did the court of appeal rule?

EATON: The Court of Appeal affirmed the jury's verdict of the of and the judgement on the jury's verdict of $2,000. The Court of Appeal pointed to evidence at trial that bats had indeed been known to notice out of batters' hands and in fact that they had been known to fly out of left handed batters' hands as in this case in the general area where ms. Radcliff was struck. In responding to the Padres' chief contention that the bat had never flown in the exact angle that this one did, the Court said, quote, the fact, if it be a fact, that no one had before seen such a bat fly through the air at exactly this angle and for this precise distance is not controlling here. The very fact that the exact line of flight cannot be determined in advance is in itself a good reason why the exercise of reasonable care in guarding against such an incidence should require the furnishing of protection over the area where experience has shown that such a danger is to be expected. Close quote. Ultimately it was the jury's call to determine whether it was foreseeable that this flying bat would wind up where it did, and therefore whether the Padres had a duty to protect against it.

CAVANAUGH: That's good. Now, we move from flying bats to flying wieners. And just to tell our listeners, we're gonna be talking a lot more about ballpark hotdogs this hour.

EATON: We try to coordinate these topics.

CAVANAUGH: But now, the jury announced its verdict last month in a case out of Missouri where a mascot for the Kansas city royals allegedly injured a fan when the mascot threw a hot dog in his eye. We're not making this up. Dan, tell us the facts.

EATON: That's gotta hurt. We move from the 1930s now to 2009, specifically September 8th, 2009. John Coomer was attending Royals Knights game, as he had for many years, and this on was against the Detroit Tigers. He was sitting six rows up from the third base line -- the third dugout, if I had to guess, the royals mascot named slugger portrayed by a man in a lion's costume, climbed up the third base dug out and started shooting hotdogs wrapped protectively in bubble wrap from an air gun, an air cannon, it was later described, into the stands of after finishing shooting, the four and a half ounce know hotdogs from the canon, no. He decided to start throwing them by hand, as this mascot had done before. These hotdogs unlike the air gun propelled wieners were wrapped only in foil though, and the hotdog was normally thrown at an arc, but he didn't throw it at an arc this time, he threw it right at Mr. Coomer's left eye, causing him to suffer a detached retina.

CAVANAUGH: Unbelievable!

EATON: And That ultimately required no fewer than three surgeries. So obviously Mr Comer sued.

CAVANAUGH: Yes, obviously he sued. Was the mascot new on the job? Didn't he know how to throw those wieners.

EATON: Well, the answer to the second question is yes, the answer to the first question, is no, he was not new on the job. He had been on the job for 14 years, and surprisingly, he was fired the month after this incident, but was not told why. It's very interesting, when he threw the hotdogs by hand, he generally, quote, would try and put more mustard on it. I guess that's appropriate for a hot dog, close quiet. I didn't make it up. So all the groans out there should be directed to him, not me?

A. Oh, man. What did the jury have to decide, Dan?

EATON: Well, the jury had to decide whether by attending the game, Mr. Coomer assumed the risk of being a flying object thrown by a mascot. And generally, and this is true under California laws, we just learned teams do not guarantee that fans will not suffer injuries from if risks that are foreseeable. And all the team must do is to make reasonable care. [CHECK AUDIO].

CAVANAUGH: Well, indeed. What did Mr. Coomer contend the royals did wrong to cause this accident? I would imagine having somebody throw a hot dog in his eye is probably what he said.

EATON: Well, he did. And according to the complaint that he filed to February, 2010, which I actually ended up reviewing, Mr. Coomer claimed that the mascot should have been more careful in throwing the hot dog. At the very least, the royals should have done a better job training the mas cos, and I'm quoting right from the complaint here, Maureen, the proper method of throwing hotdogs into the stands or providing close quote, providing better supervision of the activity. You can sort of imagine a training school of some sort of throwing hot dog into stands in a safe way.

CAVANAUGH: Always in Ana, we heard that.

EATON: Always in an ark and with some mustard.

CAVANAUGH: How much money was Mr. Coomer seeking in damages.

EATON: It was an unspecified amount over $25,000, Maureen.

CAVANAUGH: Now, how did this case come out.

EATON: Well, a month before trial, the judge denied the royals' motion to throw the case out of court. So that meant it had to go to a jury. And the question that the jury faced, as I said, was whether Mr. Coomer had assumed the risk that he would be hit, by a hot dog by a mascot. According to news reports, after hearing several days of testimony at trial, under a week, the jury deliberated for just over an hour, and issued a verdict on March 9th in favor of the royals.


EATON: By the way, the royals also won the game that night, against the tiger, beating them 7 to 5.

CAVANAUGH: That's surprising and very bad news for Mr. Coomer. I wonder, Dan, have California courts, have they ever considered a case where a fan claimed he was injured by a team mascot?

EATON: They actually have, and it was outside of Southern California, Maureen issue it was a keys called Lowe versus California league of professional baseball. And it actually came out of a July, 1994 class A minor league baseball game between the Rancho Cucamonga quakes and the San Bernardino spirit. The quakes had a seven-foot tall dinosaur like mascot named, appropriately, Tremor. The quakes were the name of the team. The fan, John Lowe claimed a mascot was bothering him with his tail. So Mr. Lowe was distracted when this tiger's -- dinosaur's tail was hitting him, turned around to look back, and when he looked back to the game, the game had resumed and he was hit square in the face by a foul ball, resulting in very serious facial injuries, including injuries to his eye socket.

CAVANAUGH: So he had -- I'm imagining because of what the injured was on the last one, he had no case because California law says that baseball fans assume the risk of being hit by foul balls?

EATON: See, that would be a perfectly reasonable assumption, Maureen, except that -- and that is in fact what the first two or 3 lawyers that Mr. Lowe consulted. How deny that? Because I talked to the attorney who ultimately accepted his case. Her name is Marjorie seepy who is now a Public Defender up in the inland empire. And she is -- that is it also why the trial court, because of your assumption, initially threw out Mr. Lowe's lawsuit saying, you know, you assumed the risk of being hit by a foul ball. This is a baseball game. Mr. Lowe contended that, though, while fans assume the risk of being hit by foul balls they did not assume the increased risk of being hit by a foul ball because they were distracted by what Ms. Seepy called the team's marketing tool or marketing device.


EATON: And so the question was whether the fan assumed the increased risk of being hit by a ball when subcontracted by the antics of the team mascot whose presence unlike foul balls of not necessarily a necessary part of will game itself.

CAVANAUGH: Okay. So this dinosaur tail tickled him on the head, he turned around, and when he turned back to the game he got hit right in the face.

EATON: Right in the face.

CAVANAUGH: How did the Court of Appeal rule?

EATON: Well, the Court of Appeal, unlike the trial court, ruled in favor of Mr. Lowe, and said he was entitled to have his day in court, at least, before a jury.


EATON: The question, of course, that the jury ultimately would have to decide, is whether the mascot's antics increased the inherent risk of being hit by a foul ball that Mr. Lowe actually got hit by. The Court of Appeal appointed out that tremor, the mascot, had in fact missed several games and yet somehow the game went on. And so that suggested to the Court that as a matter of law, in other words necessarily, that is had presence was not necessary, and because it wasn't necessary, a jury would have to decide whether this mascot's an ticks increased the risk to Mr. Lowe.

CAVANAUGH: So was this case, did it ultimately go to trial?

EATON: It did. According to Ms. Seepy, again, to whom I spoke last Monday, she said, no, the case settled for an undisclosed sum soon after the Court of Appeal issued its ruling, but the sum was sufficient to take care of Mr. Lowe's expenses.

CAVANAUGH: Mr. Coomer would have been better off if that lion mas cot hadn't showed up to every game.

EATON: Well, that's right [CHECK AUDIO] remember that Mr. Coomer's case you had a jury verdict. What you haven't had yet was an appeal. Now, Mr. Coomer was quoted in press reports as saying that he respected the jury's verdict. But a lot of people say that and end up appealing. So we'll have to see how this case ends up working its way through the Courts in the midwest.

CAVANAUGH: Well, the final case that we go to, Dan, at least doesn't involve anybody getting actually injured. So it involves --

EATON: At least not physically.

CAVANAUGH: No. What if you go to a game and you don't get hit by anything? What if instead you don't get to sit inside the stadium in on your seat, [CHECK AUDIO] and what if the ticket is for the rare opportunity to watch a super bowl game live? We are talking about, what happened this February when cow boy stadium could not accommodate nearly 3000 ticket holders for super bowl 45 because of safety problems with an expanded seating area that had been planned for the occasion. So tell us a little bit about that background. What was this expanded seating area?

EATON: Are, it was an expanded seating area that Jerry Jones who owns Dallas Cowboys had put in place to try to break the record of the largest number of people who had actually seen a live super bowl. Well, they couldn't quite get the seating in place in time, and as a result, a large number of fans were diverted or delayed or couldn't get inside the stadium all together. [CHECK AUDIO] acknowledge their fault in the situation, and offered to compensate those affected. What was offered was apartment not enough for at least some of the fans who filed a federal lawsuit in Dallas.

CAVANAUGH: Right. This federal lawsuit is Simms V. Jones. Tell us about it, dap.

EATON: All right of the lawyers are seeking to bring the case as a class action, Maureen, and there are three groups of fans that the 17 page complaint claims were affected by the seating arrangement or the failure to get the seating arrangement order. The first group of fans suing under the complaint are what are called the people who were entirely displaced. Who were not able to get inside the stadium, but in fact were required to watch the game from monitors. The second group of fans consisted of those who allegedly were relocated to inferior seats or who were unreasonably and substantially delayed in reaching their assigned seats of the third group of fans were a group of founders of cow boy stadium, those were season ticket holders who paid up to $100,000 for seat licenses, and yet were assigned seats in metal folding chairs that had limited lines of sight. So all three groups of fans are purporting to sue under a class action.

CAVANAUGH: Any Californians involved in this in.

EATON: Actually, yes, according to the claim, more than [CHECK AUDIO] and one of the roughly 846 fans who were relocated to seats inferior to their assigned seats was according to the complaint a LA County resident who seeks to represent that part of the class consisting of those ticket holders who were relocated from their assigned seats or unduly delayed in reaching their assigned seats.

CAVANAUGH: Now, they're assuming among others, Jerry Jones, the owner of the Dallas Cowboys, his corporation as well as the Dallas Cowboys organization, the NFL, and Cowboys Stadium itself.

EATON: Let's bring them all in.

CAVANAUGH: Now, as I said, there has been an offer made to fans issue the last one was pretty -- I mean, okay, I'm gonna say it. It was pretty good. It was a choice between a free ticket to any future super bowl, plus airfare and hotel accommodations or a free ticket to next year's super bowl plus --

EATON: If it's played.

CAVANAUGH: $2,400, is a good point. Plus 300 times the face value of the tithe. Okay. So this is it the offer made to the fans, these fans who are saying they don't want it. Why don't they like these options?

EATON: Well, Maureen, because -- and by the way, there is an important hearing in this ongoing labor dispute tomorrow in a federal court in Minnesota. But the fans claimed it wasn't compensate them for [CHECK AUDIO] for the frustration and disappointment that they had in not being able to enjoy the super bowl 45 in the manner that they had come to expect that they would. The complaint also says that triple the face value, the $800 face value doesn't necessarily compensate them because as we all know, people often by these tickets at far more than their face value. So the $2,400 for at least some of the fans wouldn't even cover their out of pocket expenses, and the founders who health the seat licenses and had to sit on metal [CHECK AUDIO] weren't offered anything as a result of the settlement. And this is all coming from the website of the attorneys who are representing this purported class.

CAVANAUGH: I think it's very interesting what the complaint says that those who are being sued did wrong. I mean, they really think they got the short end of the stick here.

EATON: They are. And what they are saying is that at the very least, that first class, the first part of the class, what's called a subclass, at least they should have gotten seats inside the stadium. They didn't even get that. They had to watch on the monitors. They saw the company, the people who are being sued breached their contract to these people. They are also saying that they breached the contractual obligation to put them in their assigned seats for that other group of people, and they breached their contract to the founders, the seat license holders but not each really telling them that they were gonna get inferior seats to the super bowl. And the right to were approximate the seats to [CHECK AUDIO] paying this six figure number for the seat licenses, they're also claiming that they were victims of fraud.

CAVANAUGH: Yeah. Of because they claim that the people they're suing knew that they couldn't provide what it is that they promised.

EATON: Right. For several days, they claimed that injury Jones and others knew that there was going to be a problem with these seats and doesn't disclose that fact. They should have told them, and as a result, these fans incurred you will this money comes to a super bowl, and they ended up not watching in the manner in which they expected they would be able to watch it.

CAVANAUGH: Okay. So they don't want a nice ticket to next year's super bowl, if indeed there is one, as you say, and the $2,400. What does this -- this group of fans, what kind of damages are they seeking?

EATON: Maureen, according to the complaint, they are seeking total damages of at least $5,000, that exceed $5 million.

CAVANAUGH: $5 million. Of.

EATON: It's about three zeros. The total damages is exceeding $5 million. And that would include, understand, that the actual damages they say they have suffered, they say their out of pocket are tripling of the actual damages under the Texas consumer protection law, punitive damages to incur this [CHECK AUDIO] and also of course attorneys' fees in incurring this action.

CAVANAUGH: Don't get a super bowl fan mad, boy.

EATON: Ne, no.

CAVANAUGH: So where does this case stand again?

EATON: Well, I looked at -- my secretary, [CHECK AUDIO] before a U.S. district judge, are Barbara Lynn, and the most significant recent order was on March 2nd of this year, and it's an order that mostly denied the fans' count of lawyers' request that the defendants, those being sued be prohibited from contacting members of the potential class, specifically about the settlement offers, none the less, the judge said that that offer had to remain open for an additional 60 days of so we'll see how this plays out. But we'll certainly watch this action closely, and bring listeners updates as developments --

CAVANAUGH: Absolutely. Since the cow boys basically already said that they messed up.

EATON: Yeah.

CAVANAUGH: There's a possibility that this may still settle.

EATON: That's right. There's a possibility this may still settle. Of we're still in the early stages, and so we'll have to watch very closely what the judge does, and ultimately whether the two sides can come together.

CAVANAUGH: Well, I think we've given fair warning to those people going to the Padres season home opener, you've gotta duck.

EATON: That's right. Duck! And go Padres. Let's not forget it's really what the Padres do on the field that's [CHECK AUDIO].

CAVANAUGH: I want thank you, Dan, so much.

EATON: Sure. Thank you Maureen.

CAVANAUGH: If you would like to comment please go on-line, Days. Now, coming up, hoar basic and hotdogs. And everything you like to eat at a ball game. That's ahead as These Days continues here on KPBS.