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Andrew Bergh
Andrew Bergh

April 2, 1998

Check your moose policy

By ANDREW BERGH
Special to the Journal

In case you missed it, baseball is back in full swing at the Kingdome. And if the Seattle Mariners ownership is smart, it'll buy plenty of moose insurance. Thats right, moose insurance -- as in the Mariners' team mascot. Because as shown by Lowe v. California League of Prof. Baseball, mascots like the Mariner Moose can sometimes prove hazardous to fans' health.

It sure can't be said that major league teams have a monopoly on professional mascots. In the Class A California League, mascots are employed by no less than seven of its ten minor league baseball teams. If you ever attend a home game of the Rancho Cucamonga Quakes, for example, you'll likely see "Tremor" -- a person wearing a seven-foot-tall dinosaur costume with a long protruding tail. (In case you don't follow the Quakes, they play their home games -- where else? -- at the Epicenter.)

Picture yourself in a choice box seat at a ballpark halfway between third base and the left field foul pole. That's approximately where John Lowe was sitting on July 26, 1994 while attending a night game between the Quakes and the San Bernardino Spirit.

While the game was in progress, Tremor was standing in the aisle directly behind Lowe.

As the mascot entertained some of the fans, its tail inadvertently bumped Lowe several times on the back of his head and shoulders. Momentarily distracted, Lowe turned to his right to see what was going on. At that very instant, the batter hit a sharp line drive that hooked foul in the fan's direction. Unable to react in time, Lowe was struck on the left side of his face. He later sued the Quakes (and the league) in San Bernardino County Superior Court to recover damages for his multiple facial fractures.

It's admittedly no secret that batted baseballs occasionally leave the playing field. Heck, at most games at the Kingdome, there are probably countless Mariner fans who would love to snag a foul ball for a once-in-a-lifetime souvenir.

But it's also no secret that foul balls represent an inherent risk to spectators attending baseball games.

Lowe, for one, freely acknowledged at his deposition that he'd seen many a foul ball hit into the stands and that he once saw another fan struck by a foul ball. In view of the obvious nature of this danger, most jurisdictions, including Washington, bar recovery on the ground that spectators assume the risk of being struck by a foul ball. (On this point, you might want to check the fine print on your ticket stub the next time you attend a professional baseball game.)

Given this rule regarding assumption of the risk, the Quakes moved to dismiss Lowe's suit. And after the trial court granted the motion, Lowe found himself on the wrong side of an appeal.

As they say, though, it ain't over 'til it's over. And just like Lou Piniella's pitching staff, the Quakes' legal bullpen couldn't hold the team's early lead.

It's true, said the appeals court, that professional ball clubs generally owe no duty to protect spectators from foul balls. That's because baseball fans assume the risk of injury from inevitable aspects of the game. For the same reason, golfers assume the risk of being hit by errant drives, while skiers take their chances with steep or icy moguls.

As the appeals court pointed out, however, a professional mascot is only a marketing tool -- not an inevitable part of the game of baseball. And although professional ball clubs may owe no duty to protect spectators from inherent risks of the sport, they do owe a duty not to increase those risks. It was therefore a question of fact, the court said, as to whether Tremor's antics, and the resulting distraction to Lowe, had unreasonably increased the risk that Lowe might be struck by a foul ball.

It remains unknown, of course, whether Lowe would ultimately prevail at trial. But given the serious nature of his facial injuries, I suspect the Quakes may want to cut their losses and settle out of court.

Given his bullpen's shoddy performance on opening day, Lou Piniella might wish he had that same option.


Seattle lawyer Andrew Bergh, a former prosecutor and insurance defense attorney, now limits his practice to plaintiff's personal injury cases. He fields questions via email at andy@berghlaw.com.


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