Legally Speaking: Warning - Beware of Killer Hot Dogs

By John G. Browning | Mar 4, 2010

When I was a child, my mother would warn my three older brothers and me during particularly exuberant bouts of horseplay that "it's all fun and games until somebody pokes an eye out." Thank goodness she never bought us a hot dog at a Kansas City Royals' baseball game.

The Royals were recently sued in Jackson County, Mo., by John Croomer, who alleges that on Sept. 8, 2009, he was hit in the eye at a game.

The offending object? Not an errant baseball, but rather a flying hot dog allegedly flung by the Royals' mascot, Sluggrrr (yes, I know, that's three Rs; Sluggerrr is apparently a lion).

According to the lawsuit, the mascot was trying to entertain fans during a lull in the action by firing hot dogs into the stands from an air gun. Now, I know what you might be thinking -- use an air gun to fire something like a bratwurst, and somebody in the crowd just might get hurt.

But as the plaintiff himself concedes, Sluggerrr put the air gun down and began manually throwing hot dogs into the stands. At one point, the mascot tried to throw a hot dog behind his back, but instead of arcing it high into the stands, the wiener traveled directly to Mr. Croomer, who was sitting several feet away, and struck him in his left eye.

Croomer is seeking thousands of dollars alleging the wayward wiener caused a detached retina, leading to cataracts, two eye surgeries and permanently impaired vision.

I don't know about how meritorious Croomer's claims are, and Kansas City Royals director of media relations, David Holtzman, declines to comment "on any legal issues," but the baseball team might want to think about making an addition to their pitching staff.

Anybody who can fling a hot dog behind his back while wearing a lion suit hard enough to cause a serious eye injury must have a heck of an arm.

Injuries at sporting events like that are usually covered by a legal doctrine called "assumption of the risk," which means that spectators accept or assume the risk that a stray ball or other object might cause an injury, and that the team and stadium owners bear no legal responsibility.

Taking responsibility for one's self, however, is rapidly becoming an alien concept for those who would move society even further toward becoming an all-out "nanny state," where the government - not you - knows best, even when it comes to something as basic as chewing one's food.

"Don't bite off more than you can chew" is a great lesson; most of us learn it in its most literal sense as toddlers, and continue to apply that advice metaphorically as adults.

But there is a movement afoot, spearheaded by a New Jersey lawyer and aided by a recently announced policy statement by the American Academy of Pediatricians (AAP), to actually put warning labels on foods, like hot dogs, that pose a choking hazard for young children.

The same movement urges forcing food manufacturers to design new foods and redesign existing foods to minimize the risk of choking, advocates urging the Food and Drug Administration to work with other government agencies to establish a national food-related choking surveillance and reporting system and calls for instituting recalls of foods linked with choking.

Part of me sympathizes with Joan Stavros Adler, the crusading lawyer whose 4-year-old son Eric choked to death in 2001 on a piece of hot dog. Ever since the tragedy, Ms. Adler has pushed for warning labels and lobbied for federal legislation.

Several efforts at creating federal warning labels have failed in Congress, although some food companies like Oscar Mayer have voluntarily included a warning label about choking. Ms. Adler doesn't consider it nearly enough, noting that even though she considered herself informed about children's safety, and although her son had previously eaten hot dogs with no problem, tragedy still struck.

It's an uphill battle with foods as embedded in our popular culture as hot dogs, which she concedes are "about as American as apple pie. You really don't know how horrible it can be."

In support of the sweeping changes that it is calling for, the American Academy of Pediatrics points out that choking kills more than 100 children under the age of 14 in the U.S. each year, and that thousands more are treated in emergency rooms.

Foods, including candy and gum, are among the leading causes; in 2006, 61 of 141 choking deaths involving children were food-related. Objects, including coins, balloons, small balls and toy parts, account for most of the rest. The AAP points to federal laws that already require choking warning labels on certain toys and games with small parts.

It also advocates cutting high-risk foods, such as hot dogs, grapes, and apples, into small pieces for small children to reduce the chance of choking, and some pediatricians would like to see certain "risky" foods like hard candy, marshmallows, and popcorn not given to your children at all.

While I am sorry for Ms. Adler's tragic loss, I just can't accept that, in addition to all the other government intrusion into our lives, we need the government to require the slapping of even more warning labels on food, or to require that something as quintessentially American as the hot dog be reconfigured into a different shape.

Big Brother already looks over our shoulder (since we apparently cannot be counted on to look out for ourselves) with warnings about transfats and all manner of things that are bad for us. At what point did common sense and reasonable parenting skills cease to exist?

Both of these dictate that you're going to cut into small pieces whatever goes into your small child's mouth. Both common sense and good parenting mandate that as your child gets older, you will communicate the need for such cautionary measures to a child now capable of understanding why they're important; i.e., "chew your food," "don't run with scissors," etc.

My mother's stove never had a warning label on it - parental supervision and, later, common sense instructions prevented me from burning myself. As a child, I ate my fair share of hot dogs, foolishly insisting on not biting off more than I could chew, and actually chewing my food before swallowing it.

No one ever pureed my hot dog (which, by the way, could still obstruct the windpipe), and I grew up never appreciating all the times when I narrowly cheated death.

Hot dogs are as American as apple pie. Unfortunately, it would seem, so is litigiousness and a propensity toward the nanny state. The same sort of parents who aren't likely to exercise the common sense and parenting skills necessary to cut their kids' food in small pieces, are not exactly the sort to pore over warning labels.

We can't legislate common sense and personal responsibility, and we shouldn't have to.

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