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Monday, August 29, 2022

 

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Court of Appeal:

Producer Not Liable for Conduct of Off-Duty Personal Chef

Opinion Says Film-Maker Can’t Be Blamed for Death of His Executive Assistant From Drowning in Bora Bora; She Went Swimming After Ingesting Drugs, Wine Supplied by His Employee During Trip He Financed

 

By a MetNews Staff Writer

 

A Hollywood film producer who invited his executive assistant and his chef, along with others, to a resort in Bora Bora to attend actress Jennifer Aniston’s wedding celebration is not liable, under a theory of respondeat superior, for the assistant’s death from drowning when she went for a midnight swim in a lagoon after the chef supplied her with wine and cocaine, the Court of Appeal for this district has declared.

“[W]e hold that the chef’s late-night activities with the assistant were not within the scope of his employment,” Justice Brian M. Hoffstadt of Div. Two said in an opinion filed Thursday.

It affirms a summary judgment awarded by Los Angeles Superior Court Judge Dennis J. Landin to defendant Joel Silver, producer of such films as those in the “Lethal Weapon,” “Die Hard” and “The Matrix” series.

Silver was sued by Ronald and Ann Musgrove, parents of his late assistant, Carmel Musgrove, 28. The plaintiffs sought to hold him responsible for the death based on vicarious liability for the conduct of French chef Martin Herold, 47.

Vacationing, With Duties

The assistant and the chef were part of Silver’s entourage that was staying, at Silver’s expense, at the Four Seasons Resort on a private motu (islet) in the Bora Bora island group in French Polynesia. They were there partially on vacation, but with limited job-related duties to perform.

Late on the night of Aug. 18, 2015, Carmel Musgrove came to Herold’s bungalow; she became inebriated after ingesting wine and cocaine he supplied; she left, returned to her room, disrobed, and went for a dip; her body washed up on shore the next day.

The parents maintain that Herold had formed a special relationship with their daughter, imposing on him a duty to safeguard her welfare, yet placed her in danger by supplying intoxicants, became obliged to protect her from harm by such means as staying with her until she was sober, but failed to carry out his duty, resulting in her demise. Under the facts, they insisted, Herold was acting within the scope of his employment, that the consequence to their daughter from the partying during the stay, of which Silver had knowledge, was foreseeable by the producer, and that he is therefore vicariously liable.

Plaintiffs’ Position

In their opposition to Silver’s motion for summary judgment (“MSJ”), the parents argued:

“It is undisputed that Herold was an employee of Silver at the time of the Bora Bora trip and that he was on the trip to perform his duties as a personal chef to Silver….Silver’s MSJ makes a simplistic argument that because Herold wasn’t specifically working for Silver at the time of his activities with Musgrove, he was not within the course and scope of his employment for purposes of vicarious liability. The law, however, does not accept such a narrow or simplistic definition of the course and scope of employment.”

They went on to assert:

“[I]t is clear that Herold’s recreation and ‘partying’ at the Bora Bora resort was done with the permission of his employer, Silver, and that such activities had become customary and within the expected practice for employees accompanying Silver for his vacations. Furthermore, in such an environment it was certainly foreseeable that employees would ‘party’ together and engage in intimate behavior as Musgrove and Herold did. This is especially so since Musgrove was known to hang out and drink together with Herold or other Silver family chefs on prior trips….Thus, all of these activities fall into the category of work-related recreation that is within the scope of employment….”

Hoffstadt’s Opinion

Landin correctly rejected those arguments, Hoffstadt concluded.

“[A]ssuming it to be true that Herold placed Musgrove in peril and failed to protect her, Silver’s vicarious liability for Musgrove’s death turns on whether Herold was acting within the scope of his employment when he engaged in that tortious conduct,” he said, declaring:

“[W]e independently agree with the trial court’s conclusion that the undisputed (or assumed) facts establish as a matter of law that Herold was not acting within the scope of his employment under any of the pertinent tests.”

He said that under the “risk-focused” test, the inquiry is at whether the employee’s conduct was an “outgrowth” of the employment. Hoffstadt wrote:

“Silver employed Herold as his family’s personal chef; for the August 2015 trip, Herold’s job was to purchase groceries and then to prepare lunches and dinners for the members of Silver’s entourage who accompanied him in Bora Bora. Herold’s conduct in meeting up with Musgrove at 10 p.m. in one of their private bungalows to consume wine and cocaine was not required by, engendered by, or any outgrowth of Herold’s job as Silver’s chef.”

Hoffstadt added:

“The fact that Silver expensed the bungalow is not enough as a matter of law.”

Applying a “foreseeability-focused test,” the jurist said that “as a matter of law,” the decedent’s drowning was not “a ‘reasonably foreseeable’ result of his employment as Silver’s personal family chef.”

No Employer Benefit

From the standpoint of a “benefit-and custom-focused test,” he opined, “Herold’s conduct in imperiling Musgrove by furnishing her additional alcohol and cocaine did not in any conceivable way benefit Silver’s employment of Herold as his family’s personal chef” and the conduct was not a “customary incident” of employment with him because there was no evidence any similar incident involving an employee of his.

Employing a “public policy-focused test,” Hoffstadt set forth:

“Herold’s malfeasance and nonfeasance is ‘simply too attenuated’ from his job duties as a chef to make it equitable to tag Silver with liability arising out of Herold’s tortious conduct.”

Direct Liability

The plaintiffs also contended that Silver had a special relationship with his assistant, spawning a duty to protect her, and that he is directly liable for her death. Hoffstadt responded that there was no special relationship based on Silver being her employee because she was employed by Silver Pictures Entertainment, which had been named as defendant, but settled.

In any event, he noted, the parents want him held liable based on “Silver’s own conduct in failing to protect her from the alcohol he furnished or subsidized,” but California law precludes imposing liability on social hosts based on supplying alcohol. Beyond that, he said, “Silver’s duty to protect his employees is limited to while they are ‘at work’ or otherwise in a locale the employer controls,” pointing out:

“Here, the undisputed facts show that what Musgrove needed protection from was her further alcohol consumption and ingestion of cocaine while in a private bungalow after 10 p.m.; that she was not ‘at work’ or undertaking any work-related activities when she did so; and that Silver had no control over any private bungalow at the resort other than his own. On these facts, Silver had no employment-related duty to protect Musgrove.”

The case is Musgrove v. Silver, 2022 S.O.S. 4149.

Encino lawyer Bradley S. Wallace and mid-Wilshire attorney Joseph S. Socher represented the parents. Silver’s lawyers on appeal were Corine Zygelman and Matthew E. Voss of the downtown Los Angeles firm of Murchison & Cumming.

 

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