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  • During an Astros game last season, Jennifer Harughty suffered a broken index finger after she was struck with a t-shirt launched by mascot Orbit between innings. Now she is suing the team for $1 million. It will be a difficult suit for her to win.
By Michael McCann
April 09, 2019

On Sunday, July 8, 2018, 35-year-old Texas resident Jennifer Harughty, along with her two sons, husband and father, watched the Houston Astros defeat the Chicago White Sox 2-1 at Minute Maid Park. Harughty and her family sat behind third base, roughly halfway up the first deck. The afternoon game featured a pitchers’ duel between Dallas Keuchel and Lucas Giolito. The Astros pulled ahead in the seventh inning when Yuli Gurriel scored on a sacrifice bunt by Marwin Gonzalez. The gamed moved briskly, lasting just 2 hours and 28 minutes. Most of the 41,654 fans in attendance probably went home happy.

One fan went home with something else: a permanent impairment to her left-index finger.

As retold by Harughty’s attorneys Jason Gibson and Casey Gibson in a complaint filed this week in Harris County District Court, Harughty was seated when Orbit, the Astros’ outer space-themed mascot, began to launch tightly-bound t-shirts into the stands from an air cannon. Orbit used his “bazooka-style” cannon, the attorneys write, around the seventh inning. While under Orbit’s control, the cannon rapidly fired t-shirts at fans who better have been paying attention. In the course of his t-shirt firing, Orbit, Harughty’s attorneys say, “took aim and fired a t-shirt into the stands where Harughty and her family sat.”

Harughty didn’t catch the t-shirt, but the t-shirt didn’t miss her. It struck her index-finger head on. The impact, Gibson and Gibson write, caused Harughty’s finger bones to shatter.

Despite Harughty experiencing substantial pain from her fractured finger, it does not appear that Harughty left Minute Maid Park immediately. Instead, the complaint indicates that she sought medical attention after the game. While in a hospital emergency room, Harughty was treated for a severely fractured finger. Health care professionals told Harughty that she would need surgery to “reconstruct” her mangled finger.

Four days later, Harughty underwent an orthopedic surgical procedure where two screws were placed into the finger. The screws were designed to both repair the fractured bone and prevent further displacement. Over the following few months, Harughty received physical therapy, but it was to no avail: she continued to suffer pain and swelling. Worse yet, the injury impaired the range of motion in the finger, meaning Harughty couldn’t move it like her other fingers.

Disappointed by her lack of recovery, Harughty underwent a second surgery on Oct. 16, 2018. This second orthopedic surgery was called tenolysis. As described by Winchester Hospital, tenolysis refers to a procedure where the surgeon releases tendons that had been adversely affected by nearby scar tissue. When successfully performed on a finger, tenolysis can restore some use of the finger.

Even after two surgeries and rounds of physical therapy, Harughty says that she continues to suffer severe pain and experience lack of motion. Her attorneys write, “as a result of her injury, Harughty’s finger remains locked in an extended position with little to no range of motion and she continues to suffer from discomfort and permanent impairment.”

To be sure, a partially immobilized left index finger is not as life-altering as other injuries that have befallen spectators in ballparks. Some, such as Andrew Zlotnick, have suffered permanent damage to their vision. As previously discussed on SI, Zlotnick was in Yankees Stadium in 2011 when fans seated in front of him opened up umbrellas during a rainy game. With his line of sight obstructed by the umbrellas, Zlotnick never saw the foul ball that collided with his eye socket. Other fans, such as Stephanie Taubin, have suffered facial fractures and neurological damage. Taubin was at Fenway Park in 2014 when a foul ball off the bat of David Ortiz crashed into her face. In extremely rare cases, some fans have even died. Last year, Linda Goldbloom was in Dodgers Stadium when a foul ball hit her head. The impact triggered an intracranial hemorrhage. Emergency brain surgery couldn’t save her.

An impaired index finger doesn’t rise to those levels of catastrophic harm. Still, a finger that doesn’t fully work is life-impacting, especially when it also causes pain and discomfort. For instance, a non-working finger interferes with a person’s ability to type. For many persons afflicted with such a condition, interference with typing can have adverse employment implications. Indeed, the ability to type is integral in certain occupations (Harughty’s occupation is not mentioned in her complaint). Given the ubiquity of email and social media in our daily lives, impairment in typing is also sure to be annoying.

Harughty’s attorneys stress that the injury causes her severe pain, suffering and mental anguish, and that her earning capacity going forward has been diminished. Further, the attorneys highlight that Harughty has incurred medical bills and will absorb additional injury-related health care expenses for many years to come. Harughty demands over $1 million from the Astros. Her case has been assigned to Judge Tanya Garrison.

Game presentation, fan safety and Harughty’s legal claims

Orbit’s use of a cannon to launch t-shirts at fans is not original. Other teams, both in the big leagues and minors, have done the same. The t-shirt cannon is one example of “game presentation,” the sports marketing strategy which advocates that teams capture fans’ attention throughout the game and that teams generate revenue by doing so. Other examples of game presentation include on-field contests, mini-games for kids and scoreboard trivia. They tend to occur during stoppages of play, such as between innings in a ballgame, and usually are part of sponsorship deals with local businesses.

Game presentation is particularly integral to baseball, where one study found that only about 18 minutes of the typical 180-minute MLB game contains plays. The lack of action in baseball is an oft-cited reason for why baseball might not appeal as well to Millennials and Gen Z as it does to older generations. Younger fans have grown up in a fast-paced, always-online world where consumers can readily re-direct their attention—be it by switching apps on their smartphones or picking a different movie to stream. Sitting in a ballpark for three hours where more than 95% of the time is spent between plays isn’t a great fit for those seeking constant engagement.

It’s rare when game presentation leads to serious injury, but it occasionally happens. With that point in mind, imagine yourself seated in a ballpark while a mascot launches a t-shirt in your general vicinity.

What happens next?

You and the people sitting near you might stand. Many of those standing will suddenly care deeply about catching a flying t-shirt launched from an air cannon. You might even jostle with the people standing near you for optimal position to catch the t-shirt. The t-shirt, of course, probably isn’t worth very much. If fans can afford to buy a ticket to game—the average price of an Astros ticket during the 2018 season was reportedly about $40—it might be safe to assume that they can probably also buy an identical version of the shirt some other time. But it’s that sudden sense of competition that drives interest in catching the shirt and that gives the shirt sentimental value.

One related safety problem is that a fan seated in the area of the looming t-shirt probably doesn’t have an opportunity to withdraw from the competition. Or if the fan wanted to exit, he or she would need to leave the area between innings or ask to move to a different seat—neither of which may be a convenient remedy. Along those lines, if the shirt is headed their way, other fans seated nearby will go for it. Even if those fans aren’t aggressive, a fan might not feel confident in their ability to catch a flying object. Some fans, due to health issues, might be physically unable to catch a flying object.

Orbit isn’t the first big league mascot responsible for injuring a fan with a projectile. In 2009, Kansas City Royals mascot Sluggerrr threw a hotdog into the stands of Kauffman Stadium between innings of a Royals-Detroit Tigers game. The throw was part of a game presentation activity that involved Sluggerrr launching hot dogs through an air gun. While his assistants re-loaded the gun, Sluggerrr would throw hot dogs. John Coomer never saw the tossed hot dog that crashed into his left eye, causing him to suffer a detached retina and, eventually, a traumatic cataract. The injuries required Coomer to undergo multiple surgeries. Coomer sued the Royals but, as explained below, was unable to prove that the Royals were legally responsible.

Harughty’s complaint doesn’t claim that any health condition made it impossible for her to catch the shirt, nor does it say that people seated in the rows near her contributed to her injury. It simply argues that the Astros were negligent through Orbit’s acts. Specifically, the complaint charges that the Astros failed to use reasonable care by authorizing its mascot to launch projectiles at fans. The complaint also asserts that the Astros failed to provide warnings of “unreasonable risk of harm associated with a t-shirt cannon.” Likewise, the complaint contends that the team failed to properly train and supervise Orbit about the risks of causing spectator injuries.

The Astros’ likely defenses

Harughty faces a number of hurdles in her litigation.

First, the legal relationship between Orbit and the Astros is uncertain at this time. The identity of the person who played Orbit isn’t publicly known, though that person is not a defendant in the case. Harughty contends that the Astros—obviously a “deep pocket” defendant most likely in contrast to the person who played Orbit—are responsible for Orbit’s acts. Employers are “vicariously liable” for the negligent acts of employees when those acts are committed within the scope of the employee’s job.

It’s unclear if the person who played Orbit was an employee or independent contractor of the Astros. As a general rule, employers are more likely to be held responsible for the acts of employees than they are the acts of independent contractors. This reflects the principle that employers have more control over, and thus responsibility for, employees than they do independent contractors. Employers can direct employees on how to perform job tasks whereas independent contractors typically have more autonomy over how they perform their work. It stands to reason that the Astros probably have significant control over how Orbit performs his/her work. The air cannon routine is clearly pre-planned and is a recurring event at games.

Any relationship between Orbit and Minute Maid Field Park could also prove important. Although Orbit’s bio on the Astros’ website suggests that the person or persons who play mascot is (are) paid by the team, the mascot’s work could nonetheless be controlled or influenced by ballpark officials. Minute Maid Park is owned and operated by a government agency, the Harris County-Houston Sports Authority. Like laws found in other states, Texas law contains sovereign immunity. This legal principle dictates that lawsuits against public entities are barred unless the defendant agrees to be sued. In practice, there are numerous exceptions to sovereign immunity where the government is found to have waived sovereign immunity. Still, sovereign immunity could prove impactful on Harughty’s case.

Second, even assuming the Astros are the proper defendant for Harughty’s complaint, the team will defend itself by invoking the so-called “baseball rule.” This longstanding legal doctrine refers to courts’ unwillingness to impose spectator injury liability on ballparks so long as those ballparks adhere to customary safety standards. For instance, if a ballpark provides netting for seats normally protected by netting in other ballparks, the ballpark has likely followed the industry norm. If so, it would have gained legal protection from the baseball rule and would likely be found to have satisfied its legal duties.

Teams are also more likely to gain protection from the baseball rule when they repeatedly warn fans of the risk of errant foul balls, bats and other objects that regularly travel from the field and sometimes injure fans. Teams usually direct their public address announcers to caution fans. Game tickets also contain important disclaimers. Like all other MLB teams, the Astros attempt to contractually disclaim any liability for “risks and dangers” incidental to the game of baseball. The language notes that spectators assume any injury from “baseballs, equipment, objects or persons entering spectator areas.” The reference to “objects” is important since a t-shirt would seemingly qualify as an object. That said, courts do not automatically enforce disclaimers. Sometimes courts are reluctant to do so when they cause unfair surprise or are ambiguously worded.

The aforementioned Coomer case involving Sluggerrr’s hot dog toss is a good example of where a mascot-caused injury leads to debate about whether the baseball rule ought to apply. Coomer’s lawsuit was heard by multiple federal and state courts. In 2014, the Supreme Court of Missouri held that Coomer being injured by Sluggerrr’s hotdog toss was “not a risk inherent in watching Royals baseball.” Therefore, ticket disclaimers did not automatically foreclose the possibility of Coomer prevailing.

Writing for the Supreme Court of Missouri, Judge Paul Wilson noted:

Some fans may find Sluggerrr's hotdog toss fun to watch between innings, and some fans may even have come to expect it, but this does not make the risk of injury from Sluggerrr's hotdog toss an "inherent risk" of watching a Royals game . . . "inherent" means "structural or involved in the constitution or essential character of something: belonging by nature or settled habit," There is nothing about the risk of injury from Sluggerrr's hotdog toss that is "structural" or involves the "constitution or essential character" of watching a Royals game at Kauffman Stadium. The Royals concede that Sluggerrr's hotdog toss has nothing to do with watching the game of baseball . . .

The Supreme Court of Missouri’s ruling allowed Coomer to have a jury decide his case. Unfortunately for Coomer, a jury ruled against him in 2015. Still, the fact that he advanced past dismissal and into the hands of a jury was something of a victory: the baseball rule didn’t lead to swift demise of his case. Harughty and her attorneys might similarly be able to argue that the baseball rule doesn’t apply to injuries caused by t-shirt cannons. Such cannons are not essential to baseball or to watching baseball games. Indeed, many old-time fans probably find them annoying and disruptive.

Still, Harughty faces other hurdles. In addition to the arguments discussed above, the Astros will likely argue that Harughty’s injury was the result of a fluke accident rather than negligence. As famed horror author—and fierce opponent of expanded ballpark netting—Stephen King has observed, the odds of suffering a foul ball injury are roughly the same as being struck by a bolt of lightning. Indeed, 99.998% of spectators at major league ballparks are not injured by foul balls. Such data is not known for mascot-launched objects (though could become known in the pretrial discovery process should Harughty’s case advance). Still, the odds of injury are likely miniscule. The Astros would probably argue that they should not be expected to safeguard against injuries that virtually never materialize. Of course, that type of argument isn’t very persuasive to fans who have been injured.

Lastly, the team could question the cause and severity of Harughty’s injury. The Astros might note that, at least according to Harughty’s complaint, it does not appear that she sought immediate medical attention or alerted stadium staff about the incident. The team could also suggest that her healthcare providers may be partly responsible. Harughty seeking more than $1 million for an impaired finger might also raise questions. Such an amount is far higher than figures typically received in injury cases and could be viewed closer to a case where a person dies due to another’s negligence. Consider that according to a 2010 article in the North Carolina Law Review, the average award for the wrongful death of an adult female between 1998 and 2008 was $3 million. Harughty’s complaint notes that the monetary damages she seeks not only reflect her injury but also exemplary (punitive) damages. The latter category damages reflect what Harughty’s attorneys say was the Astros’ “attitude of conscious indifference for the rights, safety and welfare of others” and “actual and subjective awareness of the dangers of such conduct.”

Settlement a possibility

In the weeks ahead, the Astros will respond to the complaint and deny the allegations. For now, the team has no plans to ground Orbit or bench the mascot’s t-shirt launcher. In a statement, the team says it is “aware of the lawsuit” and “does not agree with the allegations.” The statement goes on to say that the team “will continue to use fan popular t-shirt launchers during games.”

Although the Astros have not agreed to pay Harughty, it’s possible a deal will eventually be reached. Pro teams usually try to avoid legal controversies that attract media attention, even if that means paying someone whom the team insists it does not owe money. The Astros will likely consult with insurance companies with whom the team has purchased policies. In cases where customers are injured on businesses’ property, insurance companies usually play a crucial role in negotiations. This is because those insurance companies would likely contribute to any settlement or adverse verdict.

SI will keep you posted on the litigation.

Michael McCann is SI’s legal analyst. He is also Associate Dean of the University of New Hampshire School of Law and editor and co-author of The Oxford Handbook of American Sports Law and Court Justice: The Inside Story of My Battle Against the NCAA.

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