On 5/16/03 the claimant, Mr. James Jackson, suffered a right knee injury, and subsequently had a surgery performed by Dr. McMullin on 5/22/03 to repair a complex bucket handle tear of the medial meniscus. Mr. Jackson suffered the injury while at Wacky Warriors, a paintball facility in Wentzville, Missouri, chosen by the employer, PepsiAmericas, to be the location of a mandatory meeting for its employees. The facility was dedicated for the exclusive use of PepsiAmericas, and a pavilion located in the midst of the various paintball fields of play was the locus of the business meeting.
On the date of injury Mr. Jackson was employed by PepsiAmericas as an account sales manager. His duties required him to call on grocery stores and mass merchandisers in his sales territory, writing up orders for sales of soda to be delivered the next day. Mr. Jackson described the meeting on 5/16/03 as a kick off for the summer, to lay out the summer objectives, and to introduce summer sales programs and promotions offered by Pepsi.
The employer provided claimant with an e-mail as to directions to the off site meeting (Claimant's Exhibit A) and a roster of paintball teams was provided to the claimant in his mailbox (Claimant's Exhibit B). Claimant acknowledges that he was on Team Aquafina, and cannot identify any rhyme or reason as to the make up of the team rosters, other than that each of the team captains held a supervisory position in the company.
Mr. Jackson recalled that at the close of the meeting, the list of teams was made available to the participants over the power point presentation equipment used for the business meeting, and after the lunch provided on site, the participants then went to a barn to pick up the necessary paintball equipment. Mr. Jackson recalls that while participating in the paintball activity, and while running from one obstacle to another, he stepped in a hole or rut and twisted his right knee.
The employer paid for both the use of the paintball facility and the use of the equipment. Claimant, a salaried employee, was paid both salary and mileage for his attendance at the meeting. Mr. Jackson did not volunteer to be placed on a paintball team, but rather was assigned to a team by his employer. Mr. Jackson further acknowledged that the employer, whether it be by memo or through one of the supervisors, never advised him that participation in the paintball was mandatory, and further agreed that the employer offered no particular incentive or reward as an inducement to participate in paintball. The claimant testified that he supposed the purpose of the paintball was to foster "teambuilding" and to have fun. Claimant noted that his immediate supervisor, Rob Beggs, participated on one of the teams, as did other supervisors. The claimant further acknowledged that not all of the participants at the business meeting also participated in the paintball activity. Mr. Jackson further agreed that all of the paintball participants were employees of PepsiAmericas, and that none of the participants were clients of the employer.
Mr. Jackson further testified that he supposed the paintball to be a part of the agenda for that day; that he never considered not playing; and that he was never specifically advised as to whether participation in paintball was to be voluntary or mandatory on his part.
Mr. David Like testified on behalf of the employer by his deposition taken on 5/25/06. Mr. Like was sales
operations manager for the employer on 5/16/03, and participated in paintball as a member of Team Dew. Mr. Like recalls that he had no involvement in the planning of the meeting, the choosing of the paintball facility as the site, nor was he aware how the team rosters had been set. Mr. Like was not told that playing paintball was mandatory, and is unaware of any suggestion to any employee that such activity was mandatory. Mr. Like recalled that Lee Jeffries, an employee listed as being on Team Aquafina, did not participate in the paintball, but does not know why he chose not to play. Mr. Like recalls that prior to the commencement of paintball, an announcement was made that "If" you were going to play paintball, you needed to find your team and head over to the shed. The witness recalls that no other activities, other than paintball, had been scheduled, and that employees not playing paintball were free to leave. Mr. Like further recalls that the seven people listed on the roster below the list for Team Pepsi were certain female employees who did not play paintball.
Mr. John Woodhead also testified on behalf of the employer by his deposition taken on 5/25/06. On 5/16/03 Mr. Woodhead was the regional manager in St. Louis for PepsiAmericas, and his immediate boss was Rich Frey the vice president/general manager. Mr. Woodhead had a recollection of the nature and purpose of the meeting on 5/16/03 that was consistent with the recall of Mr. Jackson. The meeting was not just the usual monthly meeting of the St. Louis office to discuss sales and marketing, but was a meeting to bring in management from entry-level and up for the sales departments in Rich Frey's division, including St. Louis, Springfield, Jerseyville, Farmington, and Columbia. The decision to have a business review meeting, and to include a fun event as a part of the program agenda, was made at an upper management meeting, and Mr. Woodhead believes that the roster of teams was chosen and prepared by Christina Lohman, the assistant to Rich Frey. Mr. Woodhead recalls that he and the other upper management team captains were a competitive bunch, and that the choice of team rosters was left to Ms. Lohman to ensure that the teams were chosen fairly. Mr. Woodhead testified that the idea of the paintball activity was to have fun, and does not recall being advised, or advising anyone, that participation in paintball was mandatory, or that there would be some sort of sanction for failing to play. Mr. Woodhead recalled that it was Mr. Frey who announced the agenda at the meeting on 5/16/03, and who announced that at the meeting the employees were to have fun and play some paintball.