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]
Section 192.
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.
(c) Vehicular—…
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.
1. Alec Baldwin is a jerk.
2. Alec Baldwin was solely responsible for double-checking (redundancy always!) the gun that was handed to him by the gun wrangler on set.
3. Alec Baldwin is responsible for recklessly pointing a gun toward people and pulling the trigger.
4. Alec Baldwin is a jerk and karma is a b*tch.
Agree with 1 and 4 but no legal standing. As I mentioned in my own post 2 and 3 are critical. You never take someone’s word on whether a gun is cold. You never point the muzzle at something you wouldn’t want to destroy. Finger off the trigger until ready to shoot.
His behavior would get him thrown out of any gun range I’ve ever been to.
Were this a gun rights activist there would be howls of lynching being being heard…..but as it was Baldwin who is a gun banning Leftist….it is all about excusing his involvement in the killing of another human being by his very own hand.
Never mind the rest of the issues at play….just consider this one and only this one.
Baldwin pulled the trigger…he did so knowing it was pointed at others.
Art or not….it was patently stupid. Baldwin shares the responsibility with everyone else involved that allowed the environment exist that led to this tragedy.
That he has a history of irrational attacks upon gun owners and guns in general is what makes this so much more news worthy but no less tragic.
Perhaps Hollywood might reconsider all this blood and gore bang bang shoot’em up it has engaged in for far too long.
If there was some good to come of this sad event….that would be a very good start.
If there is a criminal charge
“(3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.””
If, as has been suggested, it was a live shoot (no pun intended), then Baldwin shooting the gun while facing the camera is a typical scene in a movie. The victim was operating the camera. Therefore it was certainly her voluntary action to allow Baldwin to fire an unchecked prop gun in her direction.
(OT)
Praise for an anti-fascist company
In-N-Out Burger (great burgers!) tells the government where to put its Covid mandates. Said the company’s chief legal officer:
“We refuse to become the vaccination police for any government. It is unreasonable, invasive, and unsafe to force our restaurant associates to segregate customers into those who may be served and those who may not, whether based on the documentation they carry, or any other reason.
“We fiercely disagree with any government dictate that forces a private company to discriminate against customers who choose to patronize their business. This is clear governmental overreach and is intrusive, improper, and offensive.”
https://nypost.com/2021/10/20/in-n-out-burger-slams-san-francisco-over-vaccine-mandate/
This incident certainly seems to have the markings of a litigation rich environment, as well many possibilites for criminal charges. I read with interest the formula promulgated many year ago by the famous jurist, Learned Hand. I must say that the lawyer in this case has system of logic that has no similarity with math. An equals sign means greater or less than. A formula in this context implies a mathmatical statement. No wonder logical persons often find law to be so incomprehensible. Real logic is absent.
Don’t aim a gun in any person, any animal, any peanut farmers direction.
No brainer here.
First of all, you never believe it when someone tells you a gun is cold. Best practice is for the giver to drop out the magazine or empty the cylinder and make sure there’s nothing in the breach. Then hand it over. This is SOP, gun-handling 101. Otherwise if someone hands you a “cold” gun you unload it and check the breach yourself.
Ask any gun store owner how many times a customer brought in a gun to be fixed or modified and assured the clerk it was cold, and the the clerk racked the slide and out popped a live round.
Second, you keep your finger off the trigger until you’re ready to shoot.
Third, you never point the muzzle at anything you don’t want to destroy.
Every bullet has a lawyer attached to it.
If you don’t know how to use a chainsaw dont use a chainsaw. If you don’t know how to drive don’t drive. If you’re ignorant about guns dont mess with guns.
I hope plenty of heads roll over this one. Absolutely avoidable and inexcusable.
You can’t tell by inspecting the breech whether the ammunition is live or is a blank. You would have to unload the gun to tell this. And, it’s not unreasonable to rely on a prop master when they tell you the gun is “cold”, otherwise, why have a prop master?
COME ON! I’ve been around guns all my life – literally, I killed my first rabbit at age 3. There is only ONE way a live round can get into a firearm and that is if somebody puts it there. There is no reason there should have been live ammunition on the set. Someone obviously loaded the weapon, which I assume was a pistol, and left it where it would be used. I suspect the union had something to do with it.
Why did Alec Baldwin point the gun and pull the trigger at the cinematographer? It’s not like she was one of the actors.
I’m under the impression they were shooting (no pun intended) a scene where the gun was pointed at the camera. Pretty standard movie stuff.
Saw a comment that they may have been going for a POV look. Like, Baldwin is pointing the gun at an actor, but we are seeing that through that actor’s eyes. To capture that POV, Baldwin is pointing the gun at the camera, i.e. the cinematographer.
Someone else noted, for safety, there should of also been a plexi-glass screen in between the prop-gun and the cinematographer.
We don’t know that he pointed the weapon at the cinematographer, whether the gun misfired, or exactly how this happened, other than the fact that Baldwin didn’t load the weapon, that someone else did and that he was told it was “cold”. He very much loved both the cinematographer and his director. Baldwin was one of the producers. He had no reason to want to harm either of them.
Isn’t his name “Alec”?
Correction: Alec Baldwin, not “Eric”
Eric?
Tragic.
Why the heck would live rounds be present on a movie set?
The armorer on the set is the one responsible.
This is one thing he can’t blame on Trump.
And he also is the producer or co-producer of the movie. That puts a great deal of responsibility on his plate.
“This is one thing he can’t blame on Trump.”
Sure he can:
With his mean Tweets, Trump created culture-wide strife. Everybody, quite naturally, felt more stressful. It has been well-documented by eminent psychologists (citations coming) that stressful individuals cannot perform efficiently. Therefore, they are not responsible for any mishaps (or even deaths).
So, you wonder, who is responsible for that accidental discharge? Why, of course, the one who caused the strife and stress.
So, sue Trump.
And throw in the NRA for good measure.
You can’t at this early stage dismiss the possibility that this was contrived by a covert Trump operative delivering payback to Baldwin.
Or that it was little green men.
Or that it was the elders of Zion.
Or the reds – it must be the reds.
Some years ago I tried a case in east Texas where a boy opened a pickup’s door on the passenger side and laid his rifle down on the front seat. His best friend already had opened the driver’s side door and was standing there when, as the rifle was placed on the seat, and without anyone touching the trigger, the rifle discharged. The trigger mechanism was defective. The bullet struck his best friend in the abdomen and nearly killed him. In the products liability case against the gun manufacturer that I was trying, the jury rightly found the boy who put the rifle on the seat to be 50% negligent. In east Texas, and most other places in the US, rule # 1 of gun safety is never ever point a gun at anyone unless you intend to shoot. In my mind, Baldwin was holding the gun when it fired, obviously pointing it at the camerawoman. He is at least partly responsible for this tragic death.
That’s a difficult call in this case. Considering having a gun pointed directly at the camera is a pretty standard and common angle the larger question is why was there no shield in place to protect the crew which is also standard practice.
There is a big difference. The guy in the pickup knew it was a gun. On a movie set it is perceived as a harmless, inspected prop. I could argue that point of view–present countless witnesses–even make Baldwin appear a victim (as he is) and win.
Schadenfreude.
Mr. Baldwin has long been a hypocritical opponent of guns even while making them central to his movies (eg “The Getaway”).
It appears that he never bothered to learn the basics of gun handling while talking like a gun expert.
Given what an AH he appears to be, my only regrets are for his victims.
One cannot expect the firearms training of a typical US Marine on a movie set, this is why military or former military advisors are commonly used, Gunny Lee Ermy and Marine Capt.Dale Dye are a few examples where firearms are to be used, however if one were to view most any You Tube video presenting firearms each time anyone picks up a firearm they check it. Alec Baldwin not a fan of firearms was inadequately trained to never ever assume anything about a firearm without a cursory inspection. Those of us familiar with handling firearms are habitually ingrained with inspecting each firearm we handle even though we may have seen someone else inspecting same. Baldwin should be barred from ever handling a firearm, blanks, no blanks
Here is where I would start looking for the Perp.
1. There were as many as three prior accidental discharges of weapons on the set. The conflicts over the conditions on the set reportedly led to a demand that union members leave the set at one point.
2. Yet another witness said “Corners were being cut — and they brought in nonunion people so they could continue shooting.”
Is “Within 24 hours of actor Eric Baldwin fatally shooting ” an error? Other reports say Alec Baldwin.
I would start here to find the perp.
1. The conflicts over the conditions on the set reportedly led to a demand that union members leave the set at one point.
2. Yet another witness said “Corners were being cut — and they brought in nonunion people so they could continue shooting.”