Takeaway
In short, this case holds that while fans assume baseball's ordinary foul-ball risk, a team may still be liable if nonessential entertainment conduct—such as a mascot physically distracting a spectator during play—arguably increases that risk.
John Lowe attended a Rancho Cucamonga Quakes minor-league baseball game at the Epicenter and sat in an unprotected left-terrace section near the left-field foul line. During play, the team mascot, Tremor—a seven-foot dinosaur character with a protruding tail—performed in the aisle directly behind Lowe. For about two minutes, Tremor's tail repeatedly struck Lowe's head and shoulders. Lowe turned around to see what was touching him; as he turned back toward the field, a foul ball struck the left side of his face before he could react, causing serious facial and dental injuries.
Lowe sued the California League of Professional Baseball and Valley Baseball Club, Inc., which operated the Quakes. He alleged that Tremor's conduct distracted him during live play and increased the ordinary risk that a spectator would be struck by a foul ball. The trial court granted summary judgment for defendants under primary assumption of risk, reasoning that a spectator who chooses an unscreened seat assumes the risk of foul balls. Lowe appealed.
Issue #1
Whether primary assumption of risk eliminated defendants' duty to Lowe merely because foul balls are an inherent risk of attending a baseball game.
Holding
No. Although Lowe assumed the inherent risk of foul balls, defendants still had a duty not to increase that risk beyond its ordinary, inherent level.
Reasoning
Under Knight v. Jewett, a defendant ordinarily owes no duty to eliminate risks that are inherent in a sport. But the doctrine does not excuse conduct that increases those inherent risks. The court held that this limitation applies to spectators as well as participants.
A foul ball entering the stands is an inherent risk of baseball because the game cannot realistically be played without foul balls. A spectator in an unscreened area may therefore assume the usual risk of being hit by one. But that principle does not resolve whether defendants' separate conduct made the ordinary foul-ball risk more dangerous.
Issue #2
Whether the mascot's antics and physical distraction during live play could constitute an increase in the inherent risk of being hit by a foul ball.
Holding
Yes. The mascot's conduct was not an essential or integral part of playing baseball, and a factfinder could conclude that it increased Lowe's exposure to the inherent foul-ball risk.
Reasoning
The relevant question was whether the activity causing the injury was inevitable or unavoidable in the actual playing of baseball. Unlike foul balls, mascot entertainment is not necessary to conduct a game. The person playing Tremor testified that games sometimes proceeded without him, and the defendants admitted that baseball could be played without the mascot.
Lowe's evidence described more than a passive obstruction or ordinary stadium activity. Tremor allegedly stood directly behind him, repeatedly struck him with the costume's tail, and caused him to turn away from the field immediately before the ball arrived. A jury could find that this distraction prevented Lowe from protecting himself and thereby increased his risk beyond the risk he assumed as a baseball spectator.
Issue #3
Whether defendants carried their initial summary-judgment burden to establish primary assumption of risk as a complete defense.
Holding
No. Defendants did not present competent, relevant evidence establishing as a matter of law that the mascot's conduct did not increase the inherent risk, so the burden never shifted to Lowe.
Reasoning
On summary judgment, the pleadings define the issues, and a defendant invoking an affirmative defense must first make a prima facie evidentiary showing that the defense fully defeats the claim. Only after that showing does the plaintiff bear the burden to identify a triable factual dispute.
Defendants relied principally on the league president's declaration that mascots were common and had become an important part of the fan experience, a newspaper clipping, and excerpts from Lowe's deposition. This material did not establish that mascot antics during live play were inherent in baseball or that physically distracting Lowe could not have increased the risk of a foul-ball injury.
Because defendants failed to establish the affirmative defense in the first instance, the court was required to deny summary judgment without relying on whether Lowe's opposing evidence independently created a factual dispute. In any event, Lowe's account supplied evidence from which a factfinder could conclude that Tremor's conduct increased the risk.
Issue #4
Whether prior foul-ball cases compelled judgment for defendants.
Holding
No. The cases involving an unobstructed spectator struck by a foul ball did not govern a case involving an active mascot distraction that caused the spectator to turn away from the field.
Reasoning
Neinstein v. Los Angeles Dodgers held that a spectator who voluntarily sat in an unscreened seat assumed the ordinary risk of foul balls. That case was distinguishable because no mascot or comparable distraction interfered with the spectator's ability to watch the game.
Clapman v. City of New York likewise did not control. There, a vendor allegedly interfered with the spectator's view, but the spectator remained facing the field. Lowe alleged that Tremor's repeated physical contact caused him to turn away from play, presenting a materially different factual setting.