A Hollywood producer was not held vicariously liable for the negligent activities of his personal chef in supplying the entourage's executive assistant with drugs and alcohol that contributed to her demise. The court reasoned that the rendezvous between the chef and the assistant took place after hours, in a private bungalow and was not related to the chef's scope of employment.

Important Facts

A Hollywood producer and his entourage, including his family, a personal chef and his executive assistant jetted off to Bora Bora for a trip. During the trip, the chef and the assistant had a late night rendezvous in which alcohol and cocaine were provided by Herold the chef and ingested by the assistant, Musgrove. The substances were provided to Musgrove by Herold. In her altered state, Musgrove decided to go for a midnight swim in the lagoon beneath her overwater bungalow after ingesting the drugs and alcohol. She tragically drowned as a result.

Musgrove's parents filed a wrongful death claim against Silver (the producer) claiming that he was vicariously liable for the negligent and wrongful acts of his personal chef. Specifically they claimed that (1) he was directly liable because he paid all resort-related expenses of the trip, including the alcohol, and (2) that he was vicariously liable because the chef was his employee. The trial court ruled that the chef's actions in regard to Musgrove on the night of her death fell outside his scope of his employment. They granted summary judgment in favor of Silver and the parents appealed.

Wrongful Death Claim

Wrongful death occurs when an individual dies due to a wrongful act or neglect of another. Plaintiffs must prove the following to prove a wrongful death occurred:

  • "Wrongful act or neglect on the part of one or more persons that causes
  • The death of another person." Norgart v. Upjohn Co., (1999) 21 Cal.4th 383, 390.

Liability for wrongful death can be assigned to the person perpetrating the negligent or wrongful conduct, or through vicarious liability in which the parties share a special relationship where one may be responsible for the acts of another. Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 210. A classic example of vicarious liability is the employer-employee relationship. In California, every person has a duty to act with reasonable care under the circumstances. Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618. Given that, it also true that a person generally does not have the duty to come to the aid of another absent a special relationship, which then compels the duty to act. Williams v. State of California (1983) 34 Cal.3d 18, 23. It is important to note that this general rule has several exceptions:

  • Duty not to place another person in a situation in which the other person is exposed to an unreasonable risk of harm.
  • If a person does place another in peril at that point the duty shifts and the person now has an affirmative duty to assist or protect that person from the peril. The duty to protect or assist exists if there is a special relationship between the parties.

At issue here is the special relationship that can exist between an employer and employee. "Whether a relationship is deemed special is a conclusion based on reasons of public policy. The existence of a special relationship does not automatically create a duty to act; instead as our Supreme Court recently affirmed, courts must also assess whether public policy concerns warrant limiting the duty that might otherwise arise by virtue of a special relationship." Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213.

To hold Silver liable for Musgrove's untimely demise, her parents need to show that either Silver placed Musgrove in peril and failed to protect her from that peril, or that Silver has a special relationship with Musgrove that required him to protect her in the situation in question. Zelig v. County of Los Angeles, (2002) 26 Cal.4th 703, 716.

Vicarious Liability

Vicarious liability can come into play based on the special relationship between an employer and an employee. Rest.3d Torts §40, subd.(b). "this relationship rests partly on the employer's ability to control their employee's conduct and partly on the public policy notion that employers who benefit from their employees' conduct should concomitantly bear the risks incident to their enterprise of a cost of doing business." Hinman v. Westinghouse Elec. Co. (1970) 2 Cal.3d 956, 960. In California, the employer will only be vicariously liable for the acts of the employee if the employee was acting in the scope of their employment when the act occurred. Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 213 (Mary M.) This special relationship between an employee and employer is also referred to as respondeat superior.

To find Silver vicariously liable for Musgrove’s death, the plaintiffs need to establish that (1) Herold engaged in negligent conduct that caused Musgrove’s death, and (2) Herold was acting within the scope of his employment at the time of his negligent conduct. As noted above, a person is negligent for placing a third party in a position of peril and then failing to protect them from that peril. (Regents, supra, 4 Cal.5th at p. 619) If Herold placed Musgrove in peril and subsequently 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.

Musgrove's parents argue that Silver should be held vicariously liable under the doctrine of respondeat superior because Herold was on call to prepare meals and had no set working hours. They reason that Herold was arguably still working at the time he met Musgrove in the private bungalow and Silver was therefore, responsible for his conduct at that time of night. The court rejected this argument and noted that public policy prevents an employer from being liable for a 24 hour on-call employee unless the activity in question is clearly within the scope of their employment. Le Elder v. Rice (1994) 21 Cal.App.4th 1604, 1607; id. at p. 1609. Herold's activities on the night Musgrove died were not part of his employment duties and Silver had no knowledge or control over what occurred. Determining whether vicarious liability should be imposed based on respondeat superior can be a complicated process. The court employs a number of possible tests to analyze these situations on a case-by-case basis.

Test #1 The Risk-Focused Test

The risk-focused test asks whether the an employee's alleged negligent or willful conduct is "inherent in the work environment or may be fairly regarded as typical." Mary M., supra 54 Cal.3d at p.209. Under this inquiry, an employee's conduct is only considered to be within the scope of employment if that conduct is found to be induced or incited as an outgrowth of their employment. The court will look for a nexus between the employee's tort and their employment culture and environment.

In the current case, Silver hired Herold to work as his personal chef. During the trip to Bora Bora Herold was responsible for buying groceries and preparing meals for Silver's entourage. On the night in question, Herold met Musgrove in a private bungalow at approximately 10 p.m. They ingested alcohol and cocaine during this encounter. Plaintiffs argue that because Herold sent Musgrove an email requesting the meet-up during his normal work hours and while preparing food for the group, that subsequent events that happened later that evening were an "outgrowth" of that email.

Silver argued that Herold's email had nothing to do with his work and the events that occurred later were not within a reasonably calculated risk that an employer would assume in employing a chef. Herold's acts of allegedly placing Musgrove in peril and failing to protect her were not "inherent in his work environment" and could not be "fairly regarded as typical of or broadly incidental to" his employment as a chef for Silver's family. Herold's actions within the context of his personal relationship with Musgrove had nothing to do with his employment.

Test #2: Foreseeability-Focused Test

This test asks whether the employee's conduct was reasonably foreseeable to the employer. Foreseeability has a slightly narrower focus in regard to this test. "An employee's allegedly tortious conduct is sufficiently foreseeable to be deemed within the scope of employment only if in the context of the particular enterprise the employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 299 (Lisa M.) In other words, was the conduct foreseeable given the duties the employee was hired to perform?

The Court here found that Herold's action of drinking and ingesting cocaine with Musgrove and his being aware that she may swim in her drug/alcohol induced state was not a reasonably foreseeable result of his employment as Silver's chef. These injuries were outside injuries that could occur as a result of Herold's employment as a chef and the duties of that position. The court stated, "Working as a chef, his conduct during his personal interaction with Musgrove is so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of Silver's business of employing Herold as a chef."

Although Plaintiffs argued that Herold's conduct was foreseeable because Silver did not implement an anti-drug/anti-alcohol policy for his employees, this argument relies on a general foreseeability standard rather than the foreseeability standard specific to respondeat superior. In this regard the Court explained, "The various definitions of foreseeability are not interchangeable. Tort law is more like baking than cooking; there are specific doctrines, each with its own recipe and whose ingredients cannot be casually swapped. When viewed through the proper prism, Musgrove’s tragic death is not a foreseeable consequence of Herold’s work as Silver’s chef."

Test #3: Benefit and Custom-Focused Test

This test asks whether the employee's conduct provided some benefit to the employer, or is a "customary incident of the employment relationship." Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 618-619 In a nutshell, the benefit to the employer must be sufficient enough to warrant holding them responsible for their employee's conduct.

Silver is also not vicariously liable under this test. Herold's actions of providing Musgrove with alcohol and drugs could not under any understanding of the facts be construed to benefit Silver as his employer. There is also no evidence that this was a "customary incident" of employment as there is no evidence that this type of incident happened previously with Herold or other employees. The fact that Herold was flown to the island to provide services as a chef and that he had access to amenities such as alcohol were not enough to prove vicarious liability. "An employee's presence at the place of employment before, during, or after the commission of the offense and the mere fact that an employee has the opportunity to abuse the facilities necessary to the performance of duties each insufficient to create vicarious liability." Alma W., supra, 123 Cal.App.3d at p.140.

Test #4: Public Policy-Focused Test

The public policy-focused test asks whether holding an employer vicariously liable for an employee's conduct promotes public policy. It look to three considerations:

  • •Will holding the employer responsible prevent recurrence of the issue?
  • Will it provide greater assurance of compensation to the victim?, and
  • Will it ensure that the victim's losses will be equitably borne by those who benefit from the enterprise that gave rise to the injury? Mary M., supra, 54 Cal.3d at p.209.

"Respondeat superior is not “merely a justification for reaching a ‘deep pocket’”; instead, all three policy rationales are grounded in the “‘deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities.’” (Rodgers, supra, 50 Cal.App.3d at p. 618.) Although liability may prevent similar future events and provide increased likelihood of the victims being compensated, these considerations are not enough to find Silver liable without finding that it is equitable to shift this loss to the employer in the first place. This shifting of the loss only occurs in situations where the employer benefited from the actions that cause the injury or death.

The common factor between all of the various tests employed by courts in California is the premise that an employer may be held liable for the acts of an employee even if the employer did not specifically authorize the conduct and even if the act ends up being intentional or criminal. However, where the employee’s “injury-producing activity” is ‘“simply too attenuated”’ from his duties for “the enterprise,” there is no vicarious liability as a matter of law. Id. In this case, the Court found that it was inequitable to shift the burden of loss onto Silver because Silver did not benefit from Herold’s “injury-producing activity” of supplying Musgrove with alcohol and cocaine before she went swimming, and because this conduct does not in any way stem from Herold’s employment as Silver’s personal family chef. In sum, Herold’s actions were simply too removed from his job duties as a chef to make it equitable to hold Silver liable for the events that arose from Herold’s tortious conduct.

Court's Analysis & Conclusion

As to Plaintiffs' assertion that Silver should be liable for placing Musgrove in peril by furnishing her with alcohol and drugs, and then not protecting her from dangerous activity, the evidence did not support this claim. In fact, although Musgrove was invited to partake in alcohol at meals, Silver denies furnishing her with any type of drugs and claims he was not even aware of anyone taking drugs during the trip. Buying Musgrove alcohol while on the trip was insufficient to hold Silver liable for the events that transpired in the bungalow later that night. The Legislature has expressly provided that a "private person cannot be held liable in tort for furnishing alcohol to another adult." Civ. Code §1714, subd.(c). "No social host who furnished alcoholic beverages to any person may be held legally accountable for injury to that person… resulting from the consumption of those beverages." Bus. & Prof. Code §25602, subd.(b).

The Court also found that Silver was not liable to Musgrove based on the theory of the two sharing a special relationship as employer-employee. The evidence showed that Musgrove was hired and paid by Silver Pictures rather than Silver in his individual capacity. The Court went on to reason that even if it found Musgrove was an employee of Silver, the Court cannot hold Silver liable for providing her alcohol because California law states that an individual cannot be liable in tort for furnishing alcohol to another adult. Civ. Code §1714, subd.(c); Bus. & Prof. Code §26502, subd.(b). Even if the court found that the special employer-employee relationship should be applied in this case, Silver's duty to protect Musgrove would still only apply while she was engaged in her work duties within the scope of her employment. It is unreasonable to require that Silver be available to protect Musgrove from danger after 10 p.m. in her private bungalow where she was engaged in activities of a personal nature and not duties relating to her job. Under these facts, Silver had no duty to protect Musgrove. Therefore, the lower Court's judgment is affirmed.

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