California Court Rules on Scope of Employment Wrongful Death

Factual and Procedural Background

Carmel Musgrove was a 28-year-old executive assistant to Hollywood Producer Joel Silver. In August 2015, Silver invited Musgrove and Silver’s personal chef, Martin Herold to travel to Bora Bora with him, his family members, and friends to Bora Bora to celebrate actress Jennifer Aniston’s wedding. Silver gave Musgrove the option of attending but did not mandate her presence. He told her if she went, she would only have minimal duties of coordinating the schedules of Silver and his family but would otherwise be free to do what she wished. He also paid all of her expenses for travel, food, and alcohol during her stay. Herold traveled to make the family’s meals but also was otherwise free to do what wished and was paid for preparing meals. His expenses were also covered, including alcohol.

On Aug. 28, 2015, the group was all present in Bora Bora. Musgrove was staying in an over-the-water bungalow over a lagoon. She met with everyone for dinner, at which she consumed wine. However, she did not appear intoxicated to the other guests. Following dinner, she excused herself and said that she was going back to her bungalow, claiming she didn’t feel well. After leaving, she texted Herold to meet up so that they could party.

Musgrove met with Herold at his bungalow, where they drank more alcohol and snorted cocaine. She drank one-half a bottle of wine and snorted a large quantity of cocaine. Musgrove later returned to her bungalow, where she disrobed and entered the lagoon to go for a night-time swim. The waters had been choppy during the day, and Musgrove drowned. Her body washed up on the shore two days later. An autopsy revealed that her blood alcohol concentration was 0.20%, and her liver contained a large amount of cocaine. The medical examiner attributed her death to drowning, which was likely contributed to by her alcohol and drug use.

Musgrove’s family filed a lawsuit against Herold and Silver for wrongful death. They argued that Silver was directly liable for Musgrove’s death because he supplied alcohol to her. They also argued he was vicariously liable because of the actions of Herold in supplying Musgrove with alcohol and cocaine and failing to take steps to protect her from swimming when he knew that she enjoyed going for night-time swims.

Silver filed a motion for summary judgment. Following a hearing, the trial court granted Silver’s summary judgment motion for both direct liability and vicarious liability. The court found that Silver was not directly liable for Musgrove’s death because he did not have a special relationship with her that would give him a legal duty to control her welfare and safety. The court found that finding a special relationship based solely on the fact that Musgrove accompanied Silver and his family to Bora Bora would run counter to California’s tort laws.

The court also found that Silver was not vicariously liable for Herold’s actions. While it found that there were triable issues of material fact about whether Herold owed Musgrove a duty of care and breached it, the court found that Herold was not acting in the scope and course of employment when he supplied Musgrove with cocaine and more alcohol. After the judgment was entered, Musgrove’s parents filed an appeal.

Issues: 1) Was Silver directly liable as a result of a special relationship with Musgrove? 2) Was Silver vicariously liable as a result of Herold acting within the scope and course of his employment when he gave Musgrove cocaine and alcohol since Silver had paid for the entire vacation, and Herold received a salary while he was there?

The plaintiff-appellants argued that the trial court erred in granting the summary judgment motion as to both Silver’s direct and vicarious liability. They argued that Silver was directly liable for Musgrove’s wrongful death by acting negligently in supplying her with alcohol and allowing her to drink to excess. They argued that he did have a special relationship with her, which meant he assumed control of her safety and welfare by paying for her to go to Bora Bora with him and his family.

They also argued that he was vicariously liable because Herold was working within the scope and course of his employment. Herold was paid to go to Bora Bora and prepare all of the family’s meals. Since his travel expenses were paid, and he was there as a part of his regular job as Silver’s personal chef, the family argued that Herold was acting within the scope and course of his employment when he negligently allowed Musgrove to drink too much, supplied her with cocaine, and didn’t take steps to prevent her from going for a swim.

Silver argued the trial court was correct when it granted his motion for summary judgment and that he was neither directly nor vicariously liable for Musgrove’s death.

Rules: 1) A person generally does not have a duty to protect unless there is a special relationship through which the person assumes control of another’s safety and welfare. 2) Employers are vicariously liable for the actions of their employees when the employees are acting within the scope and course of their employment.

In general, people are not legally obligated to protect the safety of others unless they have a special relationship with them that gives rise to a duty to act. Employers are vicariously liable for the negligent actions of their employees only when the employees are acting within the scope and course of their employment at the time that their employees’ negligent acts cause harm to others.

Analysis

The court first considered whether the court erred in finding that Silver was not directly liable for Musgrove’s death. It began by noting that people generally do not have a duty to protect others unless they have a special relationship with them that gives rise to a duty to act to protect them.

There are two exceptions to the no-duty to protect rule, including when the actor places the other person in a worse position that threatens harm or when the actor has a special relationship with the victim that gave rise to an affirmative duty to take action to protect them from harm. The court found that Silver did not place Musgrove in a worse position by paying for alcohol during the trip. It also found that Silver did not have a special relationship with Musgrove and thus did not have a responsibility for protecting her safety and welfare during the trip.

The court then considered whether Herold was acting within the scope and course of his employment at the time he provided alcohol and cocaine to Musgrove and failed to prevent her from swimming. Courts use four tests to determine whether someone was acting within the scope and course of their employment.

The first test examines whether the risk of an employee’s negligence is an inherent part of their job. Under this test, a risk will be considered to be a part of their job when it is engendered by their employment. The court found that Herold’s actions were not a necessary part of the job and thus were not an outgrowth of his employment.

The second test focuses on whether the employee’s negligent conduct is reasonably foreseeable by the employer. Within the scope of employment, tortious conduct is reasonably foreseeable only if the employee’s actions are not unusual enough in the context of employment that it would be unfair to not include the loss as a part of the employer’s responsibility. The injury suffered by the victim must be one that is likely to occur within the course of the business’s conduct. The court found that it was not reasonably foreseeable that Herold would supply Musgrove with cocaine within the course of the business’s operations or that she would drown as a result.

The third test looks at whether the employer benefitted from the tortious actions of the employee. It found that Herold’s use and sharing of cocaine with Musgrove did not provide any benefit to Silver and thus did not meet the employer-benefit test.

The final test considers whether a finding of vicarious liability would serve a public policy purpose. Vicarious liability for public policy reasons will be found when it’s necessary to prevent the type of negligence from occurring again; when it’s necessary to provide more assurance that the victim will be compensated; and when it’s necessary to ensure those responsible for the victim’s death will equitably share in the accountability. The court found that a finding of vicarious liability on the part of Silver did not support public policy.

Conclusion

The court affirmed the trial court’s grant of summary judgment for Silver’s direct and vicarious liability. The court granted Silver his costs on appeal.

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