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SAN FRANCISCO-A baseball fan injured by a foul ball after being distracted by a seven-foot tall dinosaur mascot can sue the home team after the California Supreme Court's denial of a petition to consider the issue.
In denying a petition for review in John Lowe vs. California League of Professional Baseball, et al., the California Supreme Court let stand a July 1, 1997, appellate court ruling that concluded Mr. Lowe can sue because the mascot who distracted him during a 1994 minor league baseball game was not an integral part of the game.
According to the decision by the fourth district appellate court in San Bernardino, Calif., fans such as Mr. Lowe who sit in unscreened seats normally assume the risk of being hit by foul balls, which are "inevitable or unavoidable in the actual playing of the game."
In this case, however, Mr. Lowe was distracted by the antics of "Tremor," a caricature of a dinosaur with a protruding tail who is the team mascot for the Rancho Cucamonga Quakes.
Mr. Lowe was repeatedly hit around the head and shoulders by Tremor's tail while sitting in his seat, according to the appellate decision. He turned around to look at Tremor and had just turned his head back toward the field when the foul ball hit him.
Among his injuries were numerous broken bones, including a broken nose and cheekbone, as well as permanent nerve damage and dental injuries, said his attorney, Claremont, Calif.-based Marjorie A. Seapy, a sole practitioner.
A trial court granted summary judgment in favor of the defendants and dismissed the case.
In overturning that decision, the appellate court noted games occasionally are played where the mascot is not present. "In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiffs is an issue of fact to be resolved at trial," says the decision.
The attorney for the team could not be reached.
John Lowe, plaintiff and appellant, vs. California League of Professional Baseball, et al., defendants and respondents, Court of Appeal, Fourth District, Division Two, State of California, E017721, July 1, 1997.