Defendants allegedly promoted dangerous activities for deceased
A Hollywood producer was not directly liable for his executive assistant’s death because he did not place her in peril or fail to safeguard her from such and because he had no employment-related duty to protect her, the California Court of Appeal recently said.
In the case of Musgrove et al. v. Silver, the producer took his executive assistant and a French chef, as part of an entourage of family and friends, on a trip to a Bora Bora resort. For both the assistant and the chef, the trip was partly a vacation.
The assistant – whom the producer’s company, Silver Pictures Entertainment, employed – coordinated with the resort’s staff in planning recreational activities for the entourage. As for the chef, whom the producer personally employed, he prepared the group’s meals. The producer paid salaries and covered their travel, lodging, alcohol, and other expenses.
The chef met up with the assistant late at night. She drank half a bottle of wine, snorted a “significant” amount of cocaine, then went for a midnight swim in the lagoon outside her private bungalow. She accidentally drowned.
The assistant’s parents filed a wrongful death lawsuit against the producer. They alleged the following: first, the producer was directly liable because he paid all the resort-related expenses; and second, he was vicariously liable because he employed the chef.
The parents claimed that the producer and chef were liable because they exposed the assistant to an unreasonable risk of harm. Allegedly, the producer and the chef furnished her with excessive alcohol and drugs and promoted dangerous activities, including alcohol and drug consumption and swimming late at night during unfavorable conditions.
The producer filed a motion for summary judgment. The trial court granted summary judgment in his favor and found that the producer was not liable under either the direct liability or vicarious liability theories.
The parents appealed. The California Court of Appeal for the Second District affirmed the judgment favoring the producer.
The appellate court held that the producer was not directly liable, given that he did not place the assistant in peril, did not supply cocaine to the group, and did not know that anyone was ingesting it. At most, he provided alcohol to the assistant, but this was not enough for him to be liable.
Next, the appellate court determined that the producer did not fail to protect the assistant by virtue of the special relationship between an employer and employee. The court gave three reasons for this decision:
- It was Silver Pictures Entertainment, not the producer, who employed the assistant;
- During the incident, the assistant was not at work or doing any work-related activities and was at a private bungalow over which the producer had no control;
- The producer could not be held liable for failing to protect the assistant from the alcohol he furnished or subsidized because California statutory law provides that a private person cannot be liable for furnishing alcohol to a fellow adult.
Lastly, the appellate court decided that the producer was not vicariously liable. The chef’s late-night meeting with the assistant was not within his employment’s scope under any of the tests for California courts to assess the scope of employment for the purposes of determining whether the employer was vicariously liable.
