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.
A bullet has been retrieved from the director’s shoulder following the Alec Baldwin shooting, per set member
@jackposobiec
I wonder if the obvious animosity above towards the production company for hiring (gasp!) non-union labor may contributed to the mayhem on the set.
Were the things happening on the set really “accidents”? Did an “accident,” meant only to effectively scuttle the production, go tragically wrong?
How would Fauci’s defense of gain of function research fare under Hand?
Baldwin is a plausible “hero” or a candidate for planned parent/hood.
Given the on set negligence issues, I doubt the insurance company for the movie will agree to pay out liability benefits to Rust Productions. Baldwin and the other producers will get financially crushed. I suspect the other producers will legally unite and try to make Baldwin liable for all the liability payouts. Baldwin is F’d!
Cutting corners?
Take note everybody, because is what would happen in your libertarian/Austrian economics Utopia
What is your point? This incident happened in the current system so it is not unique to a libertarian/Austrian style system. As somebody said: “utopia is not an option.”
Ben… my point is so obvious.
In a free market economy, under the Austrian model, with little or no regulations or safeguards, this is what happens.
Cutting corners happens where there is shared/shifted responsibility in a single/central/monopolistic regime. A functioning market would not tolerate its progress.
So how do you explain this incident, which happened in a heavily regulated, Keynesian economy?
What about Ashli Babbitt who was murdered for doing nothing more then trying to visit her Representative? Since when does visiting the capitol to present your views warrant a death sentence?
Alec Baldwin has now killed more people than any of the so-called “insurrectionists” who supposedly were there to “overthrow of the government.”
What hooey.
Trump’s mistake was to acknowledge a separation of powers, and respect Pelosi et al..her Choice that progressed with the murder of an unarmed woman by a senior officer and forced disorder (“riot”) when the other officers surreptitiously assaulted the hundreds of people… persons peaceably assembled.
Ashli Babbitt was killed during the commission of a crime and after she ignored an order to cease and desist by the Capitol Police. She wasn’t “visiting the Capitol”–she participated in an INVASION of the Capitol with the intent to prevent Pence from accepting certified vote totals from the 50 states and declaring Joe Biden the winner. This was on the defective and ludicrous advice of some dumbass lawyer who doesn’t know what he’s talking about, but it was Trump’s Last Stand after losing the popular vote a second time, losing dozens of court challenges, and being unable to bully Republican Secretaries of State to steal votes from Biden and award them to him. This time, 2020, he couldn’t cook the Electoral College like he did last time, so he tried to get the faithful to invade the Capitol and take over the government.
Yes, Ashli Babbit was murdered for the crime of trespassing in a public space. She was shot in the neck after the senior officer failed to alert her. Pelosi et al refused the President’s offer to increase security for crowd control, and denied civil rights to assemble, petition, and redress grievances. The people were invited inside and stayed inside the lines. Babbitt was caught in a Whitmer-closet event instigated by agents of government, Antifa, and Some, Select [Black] Lives Matter. The disorder (“riot”) was forced by the murder of an unarmed woman and officers surreptitiously assaulting the dozens of people inside the capitol and the hundreds outside. There was no insurrection, the disorder was forced, civil rights denied, and the handmade tale propagated for more than 3 trimesters, in progress. The “big lie” denies the confirmed irregularities and fraud in several Democrat districts. All’s fair in lust and abortion, I suppose.
I am thoroughly sick of the phrase “Ashli Babbit was murdered”. NO SHE WASN’T. She died during the commission of a crime, after choosing to persist in trespassing and refusing to abide by commands of various police officers who tried to stop the mob of which she was a part. She had NO right to be there, and was trying to breach the last barrier to gain access to the floor of the House in order to prevent the peaceful transfer of power. Pelosi is NOT responsible for her death. Other than Babbitt herself, Trump bears responsibility for her death for inciting a riot as his last ditch effort to evade the will of the American people for the second time, after losing dozens of court challenges and being unable to bully Republican Secretaries of State to switch Biden votes to him. NO, the crowd was NOT “invited” into the Capitol, either, and the invaders were not Antifa or Black Lives Matter people, either. The Insurrection was the result of the massive ego of a malignant narcissist who still refuses to accept defeat and the morons who literally worship this piece of excrement.
Maybe a covert Trump operative delivering payback to Baldwin somewhere in all this?
Neither SNL, nor any of the so-called late night comics will make mockery of Baldwin’s shooting the way they all mocked Dick Cheney’s hunting accident. Alec Baldwin himself viciously publicly attacked Cheney over his accident.
But rest assured they will all try their best to blame Trump and Trump supporters.
SNL should invite Trump on this weekend to play Alec Baldwin and mock the h*ll out of him.
Alec is gonna be Karma’s beeyotch. What goes around comes around.
From what I recall about the tragic death of Brandon Lee on the set of The Crow, it all stemmed from a dummy round. A dummy round is used for closeups to show the actor loading the gun. A dummy round is basically a bullet but it won’t fire. A blank will fire but there’s no projectile. The tip of the dummy round bullet broke off and lodged. When they added the blank round, it fired the projectile in the approximation of a real 0.44 bullet, fatally wounding Brandon Lee.
That tragedy should have made prop masters take their prop firearms very seriously. However, it sometimes appears as though people with zero experience handling firearms end up acting with them, handling them, or being in charge of them as props. This is very poor firearm safety. Just because it says “prop gun” doesn’t mean it’s a toy that could’t possibly fire. They’re often real guns that are assumed to be unloaded, or just loaded with blanks. Only a real firearm can fire a blank. If a prop isn’t a real firearm, then the recoil and firing would have to be computer generated.
You still need to scrupulously clean them, check the barrel, and keep them maintained. Even a misfire with a blank can seriously injure the one holding it.
So many times we see actors who are vehemently anti-gun in real life making millions off of welding guns in movies. They need to be serious about their job. At the end of the day, it’s the actor pulling the trigger, and it’s the actor who will never emotionally recover from killing an innocent person. You can’t farm out the safety of that weapon in your hands to anyone else. The actors themselves should be trained in basic firearm safety, and be taught how to break down and check weapons. When a prop master hands an actor a firearm, he or she should check the weapon, the barrel, and the ammunition himself or herself. You don’t just trust someone else that a real gun isn’t loaded, or that it’s just blanks.
That said, this criticism is in the hopes to improve the safety on set. Unless more information comes out, I don’t blame Alec Baldwin. I just think that moving forward, actors need to take that extra step to become familiar with firearms, and check those firearms personally. When they pull a trigger, if at all possible with the camera angels, it should not be pointed at a human.
There was another rising actor about 20 years ago on a set who jokingly put a gun loaded with a blank to his head and pulled the trigger, killing himself.
Nabi, the fact that he would do that indicates that the actor was never properly trained on firearms in general, and prop guns with blanks specifically. He should have known that the force and debris from firing a blank that close to his head would injure or kill him. I also wonder what the armorer was doing at the time this actor was fooling around like that.
His senseless death must have been really hard on his family and coworkers.
Workers compensation laws would probably prevail here, since it happened on the job to employees actively working on the production of a motion picture, unless there could be a products liability action. Maybe the gun was defective. Maybe there was negligence in packaging or labeling the blank bullets, or there was mixing of live ammunition with blanks. If so, there could be a products liability claim here, but probably not a tort claim, despite what Turley says while he salivates over what he says is obvious tort liability. There would be the possibility of tort liability if workers compensation didn’t apply, but it does, and it caps liability and damages. If there is criminal liability, Baldwin is not likely to be charged because: 1. he didn’t load the weapon, which was handed to him by an assistant director 2. he was told it was “cold’, meaning that it didn’t have live ammunition; 3. there’s no evidence of anything other than love and respect for his cinematographer and director, and since Baldwin was one of the producers, why would he want to shoot two of the people the project relied on? if there is criminal liability, it could be someone with a grudge against one of the victims, Baldwin, the studio or someone else.
This story came directly from the last episode of the regular Perry Mason series (not the later made-for-TV- 2-hour color episodes): “The Case of the Final Fadeout”, in which Jackie Coogan (the former child star) was the prop master and found, after a fatal shooting during the filming of a gun battle scene, an extra gun with live ammunition mixed in with prop guns. I won’t spoil the plot, but this was done deliberately in order to murder someone by proxy and you’d never guess who the killer was.
Why is WC the exclusive remedy
You can thank the various state legislatures who priortize business interests over the right of a jury to decide what compensation injured employees should receive. If it is an on-the-job injury, Workers Compensation is the exclusive remedy, and even if the injury or death results from negligence by a fellow employee, the victim still can’t sue the employer–that’s the Fellow Servant Rule. Damages are capped by law according to a schedule, like so much for loss of an eye or leg, including wrongful death damages at a fixed amount. Lost wages are capped at 2/3 of the usual salary. Medical expenses are generally paid at 80% of the prevailing payment that a health insurance company would pay, which is why some claim that doctors don’t give very good care if it’s a workers compensation claim. Also, the WC carrier can, and often does, send along some employee to doctor visits, to push the doctor to get the employee back to work and to push for the least possible expensive treatment, like physical therapy instead of surgery for orthopaedic injuries. Allegedly, the employee benefits because the employer can’t challenge liability if it’s an on-the-job injury. The corollary is that it doesn’t matter HOW negligent the employer was, you’re still stuck with WC if you’re one one of the injured employees. Even if you can made a products liability claim, you have to pay back everything you got from Worker’s Compensation, like the temporary total disability, permanent impairment award and medical bills that were paid. You have to pay your attorney out of your already meager award, too. Then, there’s federal and state OSHA, which is supposed to compensate for the lack of tort liability for employee injuries. The tort liability system would force employers to maintain a safe work environment to avoid liability for an injured employee, but since liability isn’t at issue because WC is the exclusive remedy, OSHA is supposed to make up for this. Everyone knows that employers resent OSHA and try to evade their rules.
Negligent homicide for Baldwin.
With this tragedy should come a new rule effective immediately for any film project where guns are being used on set.
Every member of the cast and crew must go through NRA gun safety training prior to the start of filming.
No actor, director, cast or crew member who works on a film that uses guns and gun violence will be allowed to personally protest in any way against the NRA, gun violence, gun rights, or the 2nd Amendment rights of law abiding, gun-owning US citizens.
If any actor elects to participate in a movie that uses guns or gun violence, they render themselves mute/moot on voicing their personal views in any public way, discussion, debate, or protest regarding guns, gun rights, 2nd Amendment.
Actors in Hollywood cannot have it both ways. Choose to make movies with guns and gun violence and lose your right to voice your opinion about 2A gun rights in America.
Alec Baldwin is a big mouth jerk.
He was obviously negligent in his handling of the gun. Alec Baldwin should be charged with involuntary manslaughter.
The NRA really does provide excellent firearm safety classes.
I was taught that unless one was fully and continuously trained, one should not point a gun at anyone no matter the type, unless the intention is to kill.
How does one trust another with one’s own life?
Ask those that for sport jump out of planes and see how many of them will trust an unknown to pack their parachutes. I think Baldwin should have tested the gun first by firing it at his own head. I’ll bet he would have insisted on a second look at the gun before he did so.