take both the prosecution and defense side for both cases. I want you to demonstrate that the plaintiff has a legitimate case for negligence showing that all four elements are met. I would also like you to prepare a defense against the negligence case from the perspective of the defendant.
JOHN COOMER, Appellant,
KANSAS CITY ROYALS BASEBALL CORPORATION, Respondent.
Mr. Coomer filed suit against the Royals, alleging negligence after its mascot “Sluggerrr,” played by Mr. John Byron Shores, allegedly threw a hot dog that struck Mr. Coomer in the eye, causing injury. Mr. Coomer contended, inter alia, that theRoyals failed to exercise ordinary care through its agents, and failed to adequately train and supervise its agents. In its answer, the Royals asserted defenses of implied primary and secondary assumption of risk.
At trial, Mr. Coomer testified that on September 8, 2009, he went to the Royals game with his father. To be closer to the game, instead of sitting in their ticketed seats, Mr.Coomer and his father sat in open seats six rows behind the third base dugout. Between the third and fourth innings, the Royals had a promotional event, the “Hotdog Launch.” Mr. Shores testified that the Royals had been doing the Hotdog Launch at home games since approximately the year 2000. In between innings, theRoyals launched 20-30 hotdogs to the fans, either through an air gun or by a hand throw. The hotdogs shot out of the air gun were wrapped in bubble wrap and the ones Mr. Shores threw were typically wrapped in foil. Mr. Shores testified that he used a number of types of throws to entertain the fans: “overhand, over the shoulder, behind the back, . .. sidearm.” The jury was shown videos of several games, including the night of September 8, 2009, although the throw at issue had not been videotaped.
Mr. Shores had no recollection of conducting the Hotdog launch any differently on September 8, 2009. He shot hot dogs into the stands with an air gun, and then began tossing hotdogs into the stands by hand. Mr. Shores was in the third base dugout, in front of Mr. Coomer and his father, and people behind them were cheering and yelling for Mr. Shores to throw hot dogs to them. Mr. Coomer testified that he saw Mr. Shores turn his back and make a motion with his arm behind his back; Mr.Coomer looked away to the scoreboard and “a split second later” something hit him in the face. The impact knocked off his hat. Because the throw came so quickly, Mr.Coomer was convinced it was a straight-line throw rather than the soft overhand tosses Mr. Shores had previously been making.
Two mornings later, Mr. Coomer noticed a problem with his vision. A tearing and detachment of his retina was subsequently diagnosed and he underwent surgery. He lost vision in his eye for about three weeks and subsequently developed a cataract. In December 2009, Mr. Coomer had an additional surgery for the cataract and now has an artificial lens in his eye. He testified that his vision in that eye suffers more impairment than prior to the injury.
Darrow v. South Huntington
Tara Lynn Darrow was born on March 31, 1987, and was a senior and member of the varsity tennis team at Walt Whitman High School on the date of the accident. She testified that the accident occurred during the powder puff football game traditionally held in connection with homecoming weekend. She had participated in this event the previous year. Darrow explained it was a “two-hand touch” game; the different positions included a “hiker,” a quarterback, a running back, receivers, and blockers.
Offensive players were allowed to impede the progress of defensive players, but intentional shoving or pushing was prohibited. Each team had a captain and the girls would decide amongst themselves who would play each position. Additionally, each team had a member of the faculty who served as the coach. Assistant principal Jonathan Varlamos was assigned to the senior team. Darrow testified the coach would “supervise and hype the team up and keep everyone off the field.” Two referees were present on the field and other school officials were present to supervise. Darrow attended a voluntary practice a few days prior to the game.
On the date of the accident, Darrow testified the game began around 7:00-7:30 p.m. The weather was sunny, a little cool, and not raining. She testified the football field was somewhat dewy as it usually gets at night. Some people had slipped, without injury, prior to Darrow’s accident.
Darrow testified that her accident happened very quickly and she could only recall very little. She testified that she attempted to avoid the block of an opposing player, but that player pushed her shoulder into Darrow and she fell to the ground. Neither Darrow nor any of the other players were wearing cleats.
The school’s physical education teacher, Eric Caballero, who was a referee, testified he had been employed by the school as a physical education teacher for the District for two years prior to Darrow’s accident. He was also employed by the District as the junior varsity soccer coach and was currently the assistant men’s basketball coach at SUNY Farmingdale. He had been asked by Ms. AnnMarie Bunce, the director of the general student organization (“GSO”) at Walt Whitman High School, to referee. Cabellero testified that this was the second year he served as a referee for the game. He noted he was not aware of any injuries the previous year.
Although schools are under a duty to adequately supervise the students in their charge and will he held liable for foreseeable injuries proximately related to the absence of adequate supervision, they are not insurers of the safety of their students, for they cannot be reasonably expected to continuously supervise and control all of the students’ movements and activities. To find that a school breached its duty to provide adequate supervision in the context of injuries caused by the acts of fellow students, a plaintiff must show that the school had sufficiently specific knowledge or notice of the dangerous conduct which caused injury, that is, that the third-party acts could reasonably have been anticipated.