Take Me Out to the Ballgame, but Keep Me Away from the Concession Stand Workers: A Hypothetical Case Involving Negligent Volunteers at Ballparks

• Date: 01 July 2016
• Author: Kenneth M. York,Jennifer Cordon Thor
• Published date: 01 July 2016
• DOI: http://doi.org/10.1111/jlse.12049

Journal of Legal Studies Education

Volume 33, Issue 2, 293–316, Summer 2016

Take Me Out to the Ballgame, but

Keep Me Away from the Concession

Stand Workers: A Hypothetical Case

Involving Negligent Volunteers

at Ballparks

Jennifer Cordon Thor∗and Kenneth M. York∗∗

I. INTRODUCTION

Many of us enjoy attending major sporting events like professional baseball

and football games. We may even partake in the concession stand offerings

from time to time. Did you know that when you purchase an item from that

concession stand, the person working at the stand may not be employed by

the stadium? It is very likely that the person selling you a soda from behind

that stand is in fact a volunteer. This volunteer is donating her time to work at

that concession stand so that a nonprofit organization will receive a donation

from the stadium. What if that volunteer was negligent in the performance

of selling you that soda in a manner that caused you injury? Who is liable for

that injury? The hypothetical case that follows challenges students in a legal

environment of business course to answer that question by examining key

legal concepts in agency and contract law, and to conduct an ethical analysis

in a case involving volunteers.

Although the events in the following case are hypothetical,1the con-

tract that the students evaluate is a portion of an actual contract used by a

∗J.D., Assistant Professor of Management, School of Business Administration, Oakland Univer-

sity, Rochester, Michigan.

∗∗Ph.D., Professor of Management, School of Business Administration, Oakland University,

Rochester, Michigan.

1Many scholars have effectively used hypothetical case studies to demonstrate key legal

and ethical concepts. See, e.g., Robert J. Landry, III, Ethical Considerations in Filing Personal

Bankruptcy: A Hypothetical Case Study, 29. J. LEGAL STUD.EDUC. 59 (2012); Robert C. Bird, et al.,

C2016 The Authors

Journal of Legal Studies Education C2016 Academy of Legal Studies in Business

293

294 Vol. 33 / The Journal of Legal Studies Education

company called Delaware North Companies SPORTSERVICE (hereinafter

DNC), which provides concession services to Miller Park in Milwaukee,

Wisconsin.2Part II of this article discusses the various areas of law and ethics

that govern this volunteer arrangement, including an overview of the volun-

teer contract. In Part III, the hypothetical factual scenario is presented, and

is followed by discussion questions with teaching notes. The article concludes

in Part IV with the authors’ observations after using this hypothetical case in

a legal environment of business course.

II. APPLICABLE LAW AND ETHICAL CONSIDERATIONS

Prior to using this hypothetical case, students should have a general under-

standing of some ethical theories and ethical decision-making models, as well

as an introduction to contract law and agency law. This hypothetical case is

best used after those topics have been covered in class. The instructor may

also want the students to conduct research into their own state’s treatment

of volunteer liability prior to or while participating in the case discussion.

A. Agency Law/Respondeat Superior

The law of agency governs many of our relationships in the business world.

Whether one is an employer or employee,3that relationship is oftentimes

governed by agency law. “Agency is the fiduciary relationship that arises when

one person (a principal) manifests assent to another person (an agent) that

the agent shall act on the principal’s behalf and subject to the principal’s

TroubledTimes at Upturn Records: Getting Traditional Legal Concepts to Dance to the New Online Beat,22

J. LEGAL STUD.EDUC. 1 (2004).

22013 Non-Profit Group Contract and Handbook for Miller Park,DEL.NORTH COMPANIES SPORTSER-

VICE, http://mlb.mlb.com/mil/downloads/y2013/BIC_2013Non-ProfitFundraising.pdf (last

visited Jan. 14, 2014) [hereinafter 2013 Non-Profit Group Contract]. A redacted copy of this docu-

ment is found in Appendix A.

3Sometimes individuals may be called independent contractors instead of employees. If a person

is an independent contractor, that person’s employer is generally not liable for torts committed

by the independent contractor during the course of employment. Courts look at the level of

control the employer has over the work being performed. If the employer has a lot of control

(supervision, provides the means/tools to perform the task), then that individual performing

the work will be considered an employee. If the employer has little control over how the work is

performed, that individual performing the work will be considered an independent contractor.

Graham v. James, 144 F.3d 229, 235 (2d Cir. 1998).