Lowe v. California League of Prof. Baseball

In Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, the plaintiff's seat was along the left field foul line. The home team's mascot (Tremor, a seven-foot-tall dinosaur character with a protruding costume tail) was "performing his antics" while standing immediately behind the plaintiff's seat. ( Id. at p. 114.) With his large costume tail, Tremor repeatedly struck the plaintiff on the back of the head and shoulders. Distracted by this contact, the plaintiff turned around to see what was hitting him. Just as the plaintiff turned his attention back to the game, he was hit in the face by a foul ball. The trial court in Lowe granted the defendants' motion for summary judgment, applying the primary assumption of risk doctrine of Knight v. Jewett, supra, 3 Cal.4th 296. The appellate court reversed, stating that while foul balls are an "inevitable or unavoidable" feature of the game, the antics of a mascot are not. ( Lowe v. California League of Prof. Baseball, supra, 56 Cal.App.4th at p. 123.) The court pointed out that if "foul balls were to be eliminated, it would be impossible to play the game. Thus, foul balls represent an inherent risk to spectators attending baseball games. Under Knight, such risk is assumed. Can the same thing be said about the antics of the mascot? We think not. Actually, the declaration of . . . the person who dressed up as Tremor recounted that there were occasional games played when he was not there. In view of this testimony, as a matter of law, we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial." (Ibid.)