The fatal shooting at Bonanza Creek Ranch already has the makings of a blockbuster tort action. Within 24 hours of actor Alec Baldwin fatally shooting cinematographer Halyna Hutchins and wounding the director, witnesses have raised serious questions of negligent and unsafe practice on the site for the low-budget film, “Rust.” The question is not whether but when the first torts lawsuit will be filed. There has already been speculation on the civil and criminal liability in the case, so it may be useful to explore what we know and what it might mean for the likely litigation ahead.
PART 1. OF CRIMES AND PUNISHMENTS [25 – 680.4]
( Part 1 enacted 1872. )
TITLE 8. OF CRIMES AGAINST THE PERSON [187 – 248]
Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntary—upon a sudden quarrel or heat of passion.
(b) Involuntary—in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
New Mexico has a similar provision that allows “involuntary manslaughter” charges for “the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.”
These conditions could be charged as actions taken “without due caution and circumspection.” In one recorded call, a witness refers to an assistant director who was supposed to check the gun for safety. The producers on the set, including Baldwin, could face such exposure.
What is clear is that there is an abundance of evidence to support a tort action even at this early stage. Most sets strictly ban or limit live ammunition on the premises and have strict protocols for the use of prop guns. Even blanks have been known to kill actors like Brandon Lee in the movie “The Crow.”
The low-budget description of this production could add to questions of whether precautions or protocols were shorted or ignored on the set.
The use of a live round (or the presence of a projectile) is itself circumstantial proof of negligence. The family of Hutchins could seek to prove negligence in a wrongful death case through res ipsa loquitur. As Dean Prosser explained, the doctrine is used when “(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.”
A live round in a prop gun does not ordinarily occur absent negligence. The question of the exclusive control of the instrumentality can be challenged but the plaintiff could argue that the production company continued to have such control. The gun was reportedly handed over by an assistant director to Baldwin, who was also a producer.
Even without the use of res ipsa loquitur, the negligence of the act seems abundantly clear. This incident could well prove a violation of a statute or regulation making the act “negligent per se.” The violation of a statutory or regulatory standard of care in the use of prop weapons would allow a jury to assume negligence and proceed to questions of causation and defenses.
Indeed, even if someone intentionally added the round for nefarious purposes, there was negligence in failing to properly check the prop before use on the set.
There are already witness statements that would fill out such a negligence narrative for trial. One crew member is quoted as saying “There were no safety meetings. There was no assurance that it wouldn’t happen again. All they wanted to do was rush, rush, rush.”
Another said that there were three accidental discharges and the set was “super unsafe.”
Yet another witness said “Corners were being cut — and they brought in nonunion people so they could continue shooting.”
Labor trouble at the site could serve to document such complaints. Labor disputes are often written up by a shop steward or labor representative at a work site.
In addition to negligence, there could be claims for the intentional or negligent infliction of emotional distress. Anyone who was injured or impacted by the accident could easily make such a claim. It can be more difficult for a bystander like the other members of the crew.
New Mexico has an intentional infliction of emotional distress claim that can be based on “reckless” conduct. Here is the jury instruction:
To recover for intentional infliction of emotional distress, __________ (name of plaintiff) must prove that:
(1) the conduct of __________ (name of defendant) was extreme and outrageous under the circumstances; and
(2) __________ (defendant) acted intentionally or recklessly; and
(3) as a result of the conduct of __________ (defendant), __________ (plaintiff) experienced severe emotional distress.
Extreme and outrageous conduct is that which goes beyond bounds of common decency and is atrocious and intolerable to the ordinary person. Emotional distress is “severe” if it is of such an intensity and duration that no ordinary person would be expected to tolerate it.
NMRA, Rule 13-1628
In New Mexico, a claim for NIED is more limited when it comes to bystanders. As shown in cases like Fernandez v. Walgreen Hastings Co., 126 N.M. 263,968 P.2d 774 (1998), bystanders can recover for emotional distress damages only when the injury is caused by a sudden, traumatic event and the plaintiff was aware that the event was causing injury to the victim.
In 1968, the California Supreme Court expanded NIED claims in Dillon v. Legg, 441 P.2d 912 (Cal. 1968), to include those bystanders who suffered emotional distress as a result of merely witnessing an accident that caused serious injury to a loved one, despite being outside the zone of danger. However, absent an injury to the witness, it required that the victim be a close family member.
New Mexico is considered a “modified Dillon” jurisdiction. New Mexico applies four limitations on bystander recovery:
1) There must be a marital or intimate family relationship between the victim and the plaintiff, limited to relationships between husband and wife, parent and child, grandparent and grandchild, brother and sister, and to those persons who occupy a legitimate position in loco parentis;
2) The shock to the plaintiff must be severe and result from a direct emotional impact upon the plaintiff caused by the contemporaneous sensory perception of the accident as contrasted with learning of the accident by means other than contemporaneous sensory perception, or by learning of the accident after its occurrence;
3) There must be some physical manifestation of, or physical injury to, the plaintiff, resulting from the emotional injury;
4) The accident must result in physical injury or death to the victim.
The crew could sue for a reckless act on the set under these rules though members could face serious pre-trial litigation under the elements of these rules.
Obviously, the clearest case could be brought by the family of Hutchins as a wrongful death action. They could also seek punitive damages in such a case. Compensatory damages cover both economic and non-economic damages. That includes pain and suffering and loss of enjoyment of life. While rare, New Mexico does not limit punitive damages, which can be sought for torts that are malicious, willful, reckless, wanton, or fraudulent.
This case would seem a compelling application of punitive damages. It would have cost little to check the gun before it was used on the set.
In my torts class, we often discuss the Learned Hand formula (B = PL), an algebraic formula developed by a famous judge to weigh negligence. (B = PL). The formula allows a comparison of the burden of avoiding an accident (B) against the probability (P) and magnitude (L) of loss resulting from the accident. When PL exceeds B, then the defendant should be liable.
Under the Hand formula, this represented a “small B” or burden case. Conversely, it is also a “high L” case given the risk to life. Moreover, given that any material in the gun can be turned into a lethal projective, the probability factor could be treated as significant. When you have a small B and a high PL, punitive damages become stronger possibility.
If there is a criminal charge, a court could opt to delay any tort action until after the prosecution. However, the statute of limitations is three years for personal injury cases. They need only to file to toll that statute so they have considerable time and any delay due to a prosecution will not undermine their case. Indeed, it could strengthen the case by benefitting from evidence acquired by police and produced by the prosecution.
The attorneys for the production company are likely to move quickly to seek settlements of civil claims, particularly with the family. They would be wise to make those numbers as high as possible given the strength of any civil case even at this early stage.
In the end, the liability may be delayed but will likely be considerable. What is clear is that personal injury lawyers will view the Bonanza Ranch as aptly named for civil litigation.