When we last wrote about hot dog litigation a few years ago, baseball fan John Coomer had just filed a personal injury lawsuit against the Kansas City Royals, seeking recovery for injuries he sustained when he was hit in the eye by a flying hot dog. The offending food item wasn't flung by just anybody; it was launched into the stands by the Royals' mascot, Sluggerr the Lion. Sluggerr was distributing the hot dogs, both by hand and via air cannon, as part of a promotional event.

As we suggested in our original write-up, one of the issues later raised in the case was whether the so-called Baseball Rule would be applicable. The idea behind the rule is that things do tend to fly around in ball parks, and thus there are certain risks that are inherent in attending a ball game. Baseball park operators are thereby insulated from liability for injuries from flying bats and balls under certain circumstances.

But could the baseball rule apply to flying edibles?

The trial court in Mr. Coomer's case said yes. The court instructed the jury that they could consider as a defense whether the risk of being hit by a promotional item thrown by a team mascot is one which inheres in the game of baseball. The jury thought that it was, and came back with a verdict of no liability for the Kansas City Royals Baseball Corporation.

Mr. Coomer appealed, however, and on January 15, 2013, the Missouri Court of Appeals reversed. Quite simply, the court said, "the risk of being hit in the face by a hot dog is not a well-known incidental risk of attending a baseball game." The Royals argued that the promotional toss has become a customary part of the game, and that Mr. Coomer, a veteran of some 175 home games, was well aware of the activity. But hot dog throwing is not a part of the sport, the court countered, regardless of how long it has been taking place, or on how many occasions.

So it's back to the courtroom for the parties, as the court found that Mr. Coomer is entitled to a new trial. Whether Mr. Coomer has been back to the ball park, however, is not a part of the record. As for us, we relish the prospect of writing about this case again, when it is finally concluded.