Don works as a peanut vendor at a minor league baseball stadium.

Don works as a peanut vendor at a minor league baseball stadium. When a customer in an aisle calls out for a bag, Don makes an underhanded pitch that hits and injures an adjacent patron. That person sues the business that provides Don with the peanuts. The provider of the peanuts argues that Don is an independent contractor and should therefore not be liable for his inability to pitch a packet of peanuts. Should this provider be vicariously liable for the injuries caused by Don’s errant pitch?