Throw Your Roll

When you walk into a restaurant that purports to be the “Home of Throwed Rolls” you are likely expecting to see someone throwing some rolls. And as “[d]ozens of hot rolls are flying through the air every few minutes,” Lambert’s Cafe certainly lives up to its name. With all these rolls flying about willy nilly it seems inevitable that one would end up hitting a patron in just the wrong way.

Lowering The Bar reported on just such a lawsuit. Troy Tucker is suing the Missouri Lambert’s Cafe after she was hit in the eye by one of the famous flying rolls in September of 2014. She claims that she “sustained a lacerated cornea with a vitreous detachment and all head, neck, eyes and vision were severely damaged.” She is seeking damages for her medical bills and legal fees totaling $25,000. She is claiming “the practice of throwing rolls” is a “defective condition” and “claims that the restaurant knew (or should have known) about the danger of this practice.”

Generally, restaurant owners owe a duty of care to their customers, who are considered invitees under the law. An invitee is one “who enters land with permission of the owner, and does so either to confer an economic benefit on the possessor, or is entering premises that are open to the general public.” The owner has a duty of care to invitees to maintain safe premises, or, if there are any unsafe conditions that could injure a patron, the owner of the land is required to warn the patron about it. However, a land owner generally “has no duty to protect invitees from open and obvious dangers,” with an exception for an open and obvious danger that presents an unreasonable risk of harm.

Another possible exception to liability is assumption of the risk. This means that a plaintiff who “takes on a risk of loss, injury, or damage cannot maintain an action against a party that causes the loss, injury, or damage.” Black’s Law Dictionary 143 (9th ed. 2009). Essentially, if you put yourself in a potentially harmful situation you assume the risk that you may, in fact, be harmed. Baseball is a good example of assumption of the risk as most courts have held that a baseball team is not liable for foul balls that go into the stands and hit a spectator on the head. The possibility of being hit by a baseball is deemed one of the risks that a spectator assumes when he or she attends the game.

However, this does not mean a baseball team can never be found liable for negligence at games. The Lowering The Bar article discussed a recent case that may have important implications in Tucker’s case. In the case, a baseball fan, John Coomer, filed a lawsuit after he was hit in the eye with a hot dog that was thrown by the mascot of the Kansas City Royals, Sluggerrr, during a September 2009 game. The jury found for the Royals and Coomer appealed his case, arguing that hot dogs being thrown into the stands were not a risk he assumed by attending the game. The Missouri Supreme Court agreed, finding that “the risk of injury from Sluggerrr’s hotdog toss is not one of the risks inherent in watching the Royals play baseball that Coomer assumed merely by attending a game at Kauffman Stadium.” Coomer v. Kan. City Royals Baseball Corp., 437 S.W.3d 184, 203 (Mo. 2014). The Court vacated the previous judgment and remanded the case, but on retrial, the jury still found no negligence on the part of the Royals.

Walking into any venue, whether it be a restaurant or a baseball game, presents some inherent risk. After all, owners are never going to be able to make their property 100% safe. It will be interesting to see how the court decides the case against Lambert’s Cafe. Will Ms. Tucker be found to have assumed the risk of her injury by going to the cafe? Will the court find that flying rolls, though an open and obvious danger, present an unreasonable risk of harm? Only time (and trial) will tell.