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The Orbit lawsuit

Now here‘s an interesting case.

A Montgomery County woman has filed suit against the Astros, alleging she suffered a broken finger when her left hand was struck by a T-shirt fired from an air-powered cannon wielded by Orbit, the ballclub’s costumed mascot, at an Astros game last July.

Plaintiff Jennifer Harughty seeks damages in excess of $1 million from the Astros in the suit, which was assigned to 157th state District Court Judge Tanya Garrison.

The lawsuit, filed by Houston attorneys Jason Gibson and Casey Gibson, says Harughty has required two operations to repair damage to her left index finger, which was shattered when her hand was struck by a T-shirt fired from the Orbit character’s “bazooka-style” air cannon during the seventh inning of an Astros game July 8, 2018, at Minute Maid Park.

Harughty, 35, of Montgomery, who works as a real estate broker, said her finger remains locked in an extended position with little to no range of motion and that she continues to suffer discomfort from the injury, the lawsuit said.

Jason Gibson said the lawsuit was filed only after the Astros refused to pay Harughty’s medical bills associated with the injury.

“Nothing was going to be done,” the attorney said. “We were directed to the general counsel, and he basically said ‘file your lawsuit.’ He asked for it, and he got it. We were hoping to get this resolved, but that didn’t happen.”

The suit said Harughty was struck on the palm side of her left hand and required treatment at an emergency room after the game. She required surgery four days later to insert two screws into the injured finger and a second operation in October to remove the screws and attempt to restore range of motion to the finger.

Major League Baseball tickets include what has become known as the “baseball rule,” which states that a ticket holder “assumes all risk and danger incidental to the baseball game, and all other activities, promotions or events at the Ballpark before, during and after the baseball game, including, but not limited to, the danger of being injured by baseballs, equipment, objects or persons entering spectator areas.”

That stipulation, which is included on the Astros’ website under season ticket policies, says that by attending a game, the ticket holder releases the Astros and Major League Baseball from liability for “injuries or loss of personal property resulting from all risk and danger incidental to the baseball game and the risks or any incidents associated with crowds of people.”

Gibson said he is acquainted with Astros owner Jim Crane and with members of the Astros’ ownership group and that “everyone loves the Astros.” However, he said he did not believe that the liability waiver covers cases such as Harughty’s.

“That’s not the type of risk you assume going to a baseball game, although they may take that position,” Gibson said. “Ours will be that you don’t assume the risk of having someone fire a cannon at you that creates that much force at that proximity that can cause that kind of damage.”

A copy of the lawsuit is embedded in the story. Let me remind everyone that I Am Not A Lawyer, so what I say is simply the speculation of a layman. I find myself rather sympathetic to the plaintiff’s arguments. T-shirt cannons, as fun as they are, are totally the team’s decision to use, and not an inherent risk of attending the game as they are a recent innovation. I mean, no one was hurling things into the crowd when I was attending Yankees games back in the 70s and 80s. (Things may have occasionally been hurled out from the crowd, but that’s another story.) People understand that a batted ball may be coming their way and they need to pay attention when the game is in progress. But mascots like Orbit do their thing in between innings, when you’d think it’s safe to check your phone. And by the way, teams have been putting up more netting around the lower decks of the stadiums, to better protect people from those increasingly hard-hit balls. If teams are willing to mitigate those risks, it’s not unreasonable to think they might mitigate a non-game risk like a projectile fired at high velocity from a T-shirt cannon. My advice, for all that it’s worth, is to offer to settle the suit for the woman’s medical costs and a bit more, and to take a closer look at how those T-shirt cannons are being operated. Why make a bigger deal out of this than necessary?

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