By David Hejmanowski
Case Study
“The chicken’s occupation is to entertain, and he was attempting to entertain.”
— Attorney Allan Levin
Harting v. Dayton Dragons Professional Baseball Club
“Silly though these issues appear at first glance, the underlying principles are serious.”
— KGB Inc. v. Ted Giannoulas
Spring has sprung, flowers are blooming, and the great American pastime has returned — it’s baseball season. Whether it’s a sign of the seriousness (and available money) of the sport, or just the litigiousness of American society, nearly every aspect of professional baseball has a history of legal action. Even the great mascots of the sport find themselves in courtrooms with relative frequency.
No mascot has been to court more often than the most famous of baseball’s costumed entertainers — the San Diego Chicken. In fact, the Chicken was hatched into litigation. Originally a promotional stunt of San Diego radio station KGB, the Chicken was born when 5-foot-4 Ted Giannoulas, a communications student at San Diego State University, appeared at the San Diego zoo to hand out Easter eggs. Giannoulas eventually convinced the station to send him to Padres games, and he was an instant hit from the day he appeared on the diamond in 1978. He later declared free agency and was immediately sued by the radio station. Giannoulas won that lawsuit, with the California court declaring that “a chicken suit, or chicken costume, in general, is a thing itself which ought not to be subject to exclusive monopoly.”
Subsequent lawsuits came in the 1980s and 1990s when the Chicken, in over-exuberant playfulness tackled, first, a minor league pitcher (Don Schulze, who would go on to pitch seven major league seasons, including two in Cleveland), and then a Chicago Bulls cheerleader, injuring them both seriously enough that they sued him seeking compensation for their injuries.
In this century, Ohio resident Roxane Harting sued after she found the San Diego Chicken to be just a bit too interesting at a game in Dayton. So interesting, in fact, that she stopped paying attention to the baseball game that she was attending. The date was June 16, 2004, and Ms. Harting was at the Dayton Dragons vs. Wisconsin Timber Rattlers ball game at Fifth Third Field in Dayton. The Chicken had been hired to perform at the ballgame.
Rather than paying attention to the action on the field, Harting was watching the Chicken. A foul ball hit into the stands struck Harting in the head, knocking her unconscious. She was transported by ambulance to Miami Valley Hospital. In April of 2005 she sued the Dragons and the Chicken for damages.
It has long been held that fans attending baseball games assume the risk inherent from baseballs entering the seating area. Nearly 100 years ago the Ohio Supreme Court ruled, “It is common knowledge that in baseball games hard balls are thrown and batted with great swiftness, that they are liable to be thrown or batted outside the lines of the diamond, and that spectators in positions which may be reached by such balls assume the risk thereof.”
Like most baseball passes, Harting’s Dayton Dragons ticket contained a warning about watching for batted balls. The Dragons’ public address announcer also made warning announcements before the game and in the second and fourth innings. It’s not surprising then that the baseball club and the performing mascot asked the trial court to dismiss their case.
Of course, with parties like these, the decision gives some memorable one liners. It’s not in every case that a court of appeals gets to say things like “her appeal was subsequently dismissed as unripe in light of the chicken’s inclusion in the case,” or “Harting challenges the trial court’s grant of summary judgment for both the Dragons and the Chicken.” The court of appeals upheld the summary judgment — a decision in favor of a party before trial which is granted because there are no facts in question and the law is clear that one side must prevail.
The Chicken has also been sued by a dinosaur. Not just any dinosaur, but Barney the Dinosaur. Giannoulas had developed a routine where a fake Barney enters the field and “is flipped, slapped, stood upon, tackled, wrestled, and otherwise subjected to aggressive physical conduct by the Chicken.” Not surprisingly, the owners of the real Barney were not pleased and sued. Giannoulas, citing parody as a defense, won that lawsuit as well.
Ted Giannoulas is now just shy of 80 years old and mostly retired, though he did make a special appearance as the Chicken in 2021 when umpire Joe West broke the games umpired record, and appeared in a Peacock channel documentary last year.
If the chance arises, go and see a baseball game in person. In Cleveland, Cincinnati, Dayton, Akron or even a local high school baseball or softball game. But if you do go, please remember to keep one eye on the baseball game — those baseballs might come “outside the line of the diamond.”
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Court of Common Pleas, where he has served as magistrate, court administrator, and now judge, since 2003. He has written a weekly column on law and history for The Gazette since 2005.
