Beltz v. Stuntman, Inc.

Opinion

I. Introduction

Does a movie stuntperson assume the risk of injury by performing a movie stunt? Is a stuntperson who fails to employ a seat belt

Motion pictures remain one of the premier forms of entertainment in today’s world. Movies frequently entertain through flights of fantastic adventure, heavily laden with excitement and danger. Motion picture producers and directors are often able to achieve such results by employing tricks of the trade (e.g., animation, trick photography, special effects, and clever splicing and editing). Some producers and directors, on the other hand, resort to photographing adventuresome activities which are nearly as dangerous as they appear on screen and which sometimes imperil those in front of and behind the camera.

The motion picture industry has long employed seemingly fearless and hardy stuntpersons to perform activities too hazardous for professional actors to undertake. Frequently, these stuntpersons achieve spectacular results without injury. Other times, as here, adventure becomes misadventure.

Plaintiff sued defendants Hal Needham (Needham) and Stuntman, Inc. (Stuntman) for catastrophic injuries she received when an automobile in which she was riding collided with a van during the filming of the movie “Cannonball Run.” The vehicle in which plaintiff was riding had no seat belts. The jury assessed the injury as worth $7 million. It found both defendants liable in negligence but also found plaintiff contributorily negligent to the extent of 35 percent. The trial judge offset the damages by plaintiff’s 35 percent contributory negligence and by amounts previously awarded under settlements with other defendants not party to this action (e.g., Cannonball Productions, Inc.) and gave judgment to plaintiff in the amount of $0.00. All three parties have appealed. We affirm the judgment.

Needham, himself a former movie stuntperson, is a motion picture director. He was the president and sole shareholder of Stuntman, a so-called “loan-out” company which contracted out Needham’s services as a director. Stuntman’s only employee beside Needham was his secretary. Plaintiff is a young woman, who, prior to her injuries, was not only a stuntwoman but an aspiring movie actress and ski instructor. Her professional stunt experience included driving a stunt car in another Needham film, “Smokey and the Bandit II.”

Needham, acting on behalf of Stuntman (and thus, of course, himself) contracted with North Shore Investments to make a movie entitled “Can

Evidence was also presented that, by custom, stuntpersons have ultimate control over their stunts, provide their own safety equipment, and are paid “stunt adjustments,” which are negotiated after the stunt and are based on the stunt’s degree of hazard. Stuntpersons may refuse to perform a stunt or may require the stunt coordinator, assistant director or production manager to make safety equipment available. Evidence indicated, however, that, if a stuntperson refused or hesitated to participate in a stunt, his or her employment on the movie might be terminated.

On the “Cannonball Run” set were 10 extra seat belts which could be installed upon request. Other “Cannonball Run” stuntpersons had even ordered “five-point” safety harnesses installed in vehicles already equipped with ordinary seat belts before proceeding with driving stunts in the movie. There was testimony that seat belts or harnesses could have been installed within 20 minutes.

Plaintiff’s expert testified that if plaintiff had been wearing a lap-shoulder belt at the time of the collision, her injuries would have been no more than fractured ribs.

Needham contends in his cross-appeal that he is not liable to plaintiff because, by performing in a movie stunt, she assumed the risk of being injured. We reject Needham’s contention.

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ], the California Supreme Court abolished the “all-or-nothing” rule of contributory negligence and replaced it with a system of comparative negligence. In so doing, the Supreme Court also

The Segoviano court’s conclusion that only express assumption of risk survived Li depends upon a seemingly ambiguous phrase in the Li opinion. The Supreme Court stated that certain assumption of risk situations do not involve contributory negligence and thus are not subsumed in comparative negligence determinations. The Supreme Court gave as an example the situation “where the plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him.” (Li v. Yellow Cab Co., supra, 13 Cal.3d 804 , 824-825, italics added.) The Segoviano court interpreted the “held to agree” language in Li to mean “expressly agree” only and thus found that only express assumption of risk had survived Li. (Segoviano v. Housing Authority, supra, 143 Cal.App.3d 162 , 167-168.)

This interpretation of the Supreme Court’s meaning does not withstand scrutiny. In the Li decision, the Supreme Court’s “held to agree” language is a direct quotation from the decision in Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240 , 245-246 [ 53 Cal.Rptr. 545 , 418 P.2d 153 ]. (Li v. Yellow Cab Co., supra, 13 Cal.3d 804 , 824-825.) The Grey decision involved only implied assumption of risk. The question was simply whether the plaintiff’s implied agreement to assume the risk was of the unreasonable variety (thus making the defense a variant of contributory negligence, as the Supreme Court in fact found in Grey) or was of the reasonable kind (thereby requiring that the jury be instructed on that defense as well as on contributory negligence). (Grey v. Fibreboard Paper Products Co., supra, at pp. 245-246.) Hence, the “held to agree” language in Li does not support the conclusion that the Supreme Court meant to abolish all but the express form of assumption of risk.

A separate line of cases has continued after Li to follow the so-called “fireman’s rule.” These cases also hold that Li applies only to the unreasonable assumption of a known risk, and that a reasonable assumption of risk continues to act as a complete defense or bar to liability. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1090, p. 494.) This “fireman’s rule” holds that firemen, policemen, and other professionals, such as veterinarians, who engage in hazardous activities in the normal course of their duties, have assumed the risk of known dangers and are thereby barred from recovering for injury. (E.g., Hubbard v. Boelt (1980) 28 Cal.3d 480 [ 169

Needham contends that a stuntperson, such as plaintiff, assumes the risk in exactly the same manner as firemen, policemen and veterinarians. He claims that when plaintiff accepted employment as a stuntperson, she implicitly assumed the risk of injury. However, we need not decide in this case whether, as a matter of law, the fireman’s rule applies to movie stuntpersons in general because the facts presented at trial show that plaintiff did not fully know the hazards she faced.

Ordinarily, a movie stunt is not like an athletic contest, a horse race or a fire, where there are spontaneous, opposing and sometimes hostile forces at play. Movie stunts are probably always to some extent planned or choreographed events, although some are better planned or choreographed than others, just as some are more dangerous than others.

A professional stuntperson might be presumed to have expertise or physical agility which minimizes the hazards of a movie stunt. Nonetheless, the stuntperson normally performs a stunt knowing danger has not been entirely eliminated. Where a stuntperson has full awareness of the hazards he faces, it may be possible to conclude that under the circumstances, he has assumed the risk of injury. However, where a movie director or producer changes the nature of the stunt without the stuntperson’s knowledge and thereby increases or otherwise alters the risk without the stuntperson’s acquiescence, the director or producer may be held liable for any resulting injuries. When in such circumstances a stunt goes awry, the apportionment of negligence will normally be a question for the trier of fact in any ensuing litigation.

In the case of Lipson v. Superior Court (1982) 31 Cal.3d 362 [ 182 Cal.Rptr. 629 , 644 P.2d 822 ], a fireman was injured severely when he responded to a chemical boilover at a manufacturing plant. The defendants had informed the fireman that the boilover did not involve toxic chemicals or materials when it in fact did. The Supreme Court held that under the circumstances the fireman had not assumed the risk and was not barred by the fireman’s rule. The court stated; “As many other jurisdictions and legal commentators have recognized, a fireman does not assume every possible risk he may encounter while engaged in his occupation. [Citations.] A

Plaintiff relies upon Segoviano v. Housing Authority, supra, 143 Cal.App.3d 162 , 175, and notes that the court of appeal there held that no instruction on contributory negligence was permissible under the facts of that case. However, Segoviano provides no support to plaintiff on this issue either since the case is clearly distinguishable. The circumstances in the instant matter bear similarity to those in Segoviano in only one pertinent respect: in both cases, the complete defense of assumption of risk has been held not to apply. (See ante, Part III.) In Segoviano, the plaintiff was not accused of negligence in the manner in which he played the football game. But, here, defendants argued that plaintiff was contributorily negligent because she failed to take the safety precaution of using a seat belt in the movie stunt, not simply that her choice to work as a stuntwoman was itself negligence. Thus, plaintiff’s analogy to Segoviano is of little utility.

We next address plaintiff’s assertion that her failure to use a seat belt could not, under the evidence here, constitute contributory negligence.

It is a matter of common knowledge that seat belts reduce fatalities and minimize injuries in motor vehicle collisions. (Greyhound Lines, Inc. v. Superior Court (1970) 3 Cal.App.3d 356 , 358-359 [ 83 Cal.Rptr. 343 ].) It /y a jury question whether a carrier’s failure to provide seat belts amounts to negligence. (Id. at p. 360; see also McNeil v. Yellow Cab Co. (1978) 85 Cal.App.3d 116 , 118 [ 147 Cal.Rptr. 733 ], holding that a common carrier’s failure to provide visible seat belts amounted to negligence.) To invoke the so-called “seat belt defense” of contributory negligence, a defendant is required to prove two issues of fact: “(1) [T]he defendant must show whether in the exercise of ordinary care the plaintiff should have used the seat belt which was available to him. ... (2) The defendant must show what the consequence to the plaintiff would have been had seat belts been used.” (Franklin v. Gibson (1982) 138 Cal.App.3d 340 , 342-343 [ 188 Cal.Rptr. 23 ], italics added.)

Plaintiff does not dispute that the evidence showed that plaintiff’s injuries would have been minimized had seat belts been used. As to the first issue of fact, the evidence showed that plaintiff was hired as a stuntwoman on the film “Cannonball Run.” The evidence also showed that she had performed as a stuntwoman in a prior film in which she drove a stunt car. It was also established that a stuntperson is responsible for his or her own

Considering that a stuntperson is employed normally to perform an act at a minimum dangerous in appearance and at a maximum highly dangerous in fact and given the movie industry custom that stuntpeople may require safety precautions commensurate with the stunt they perform, it appears obvious to us that a stuntperson has responsibility to use whatever appropriate safety equipment is available. Even before the first take of the stunt in “Cannonball Run,” plaintiff knew there were no seat belts in the sports car in which she was to ride. The evidence also indicates that she could have requested installation of a seat belt. The seat belt was available to her. Hence, clearly sufficient evidence allowed the jury to conclude that plaintiff had not exercised ordinary care when she failed to request a seat belt.

Plaintiff’s reliance upon two cases which deal with a contractor’s obligation to provide a safe work place for his employees and subcontractors is misplaced. In Slovick v. James I. Barns Constr. Co. (1956) 142 Cal.App.2d 618 [ 298 P.2d 923 ], a contractor was found to have negligently constructed a catwalk which collapsed when the plaintiff walked upon it. In Johnson v. Nicholson (1958) 159 Cal.App.2d 395 [ 324 P.2d 307 ], the plaintiffs were employed to clean an apartment with gasoline. An open flame from a blow torch being used by nearby workers ignited the gasoline killing one man and severely injuring another. In both of these cases, the evidence indicated the injured persons might have taken steps to avoid the injuries. However, the issue was not whether there was substantial evidence of any contributory negligence but rather whether it had been established “as a matter of law,” thus barring any recovery under then current tort law. (Slovick v. James I. Barns Constr. Co., supra, 142 Cal.App.2d 618 , 628; Johnson v. Nicholson, supra, 159 Cal.App.2d 395 , 409.) Each of these two cases also indicates that the question of such contributory negligence was one of fact for the jury. (Slovick v. James I. Barns Constr. Co., supra, 142 Cal.App.2d at p. 628; Johnson v. Nicholson, supra, 159 Cal.App.2d at p. 410.)

Nor do two cases dealing with an automobile passenger’s alleged duty to object to his driver’s excessive speed assist plaintiff with her contention. In

Plaintiff’s related contention is that even if she was negligent, her negligence was so slight that it does not support the jury’s allocation to her of 35 percent liability. She urges that the trial court abused its discretion when it denied her motion for a new trial on that issue. A trial court may grant a new trial order where the jury’s apportionment of damages is erroneous and where the order limits the new trial to the issue of apportionment of liability. (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442 , 457 [ 198 Cal.Rptr. 155 , 673 P.2d 743 , 38 A.L.R.4th 566 ].)

With no citation to the record, plaintiff essentially maintains that the 35 percent allocation is too high when her conduct is contrasted with that of various other parties involved in the film accident. In her brief, she describes the allegedly negligent activity of various individuals associated with the stunt, but provides us with no citations to the record. Such practice is improper. (USLIFE Savings & Loan Assn. v. National Surety Corp. (1981) 115 Cal.App.3d 336 , 343 [ 171 Cal.Rptr. 393 ].)

The majority of plaintiff’s allegations relate to the negligence of Needham, the director, and Nickerson, the driver of the ill-fated Aston-Martin. Certainly, the jury could not help but consider their negligence in allocating liability in this matter. But plaintiff also characterizes the conduct of other participants in the movie’s production as significantly negligent. For example, she points to evidence of the failure of the stunt coordinator, Bobby Bass, and others to supply a defect-free car capable of per

The question of apportionment of liability may have been a complex one in this case, but it still was one for the jury. We cannot say, considering all the attendant circumstances concerning negligence of the various parties, that the jury’s apportionment was improper or erroneous or that the trial court abused its discretion in denying the motion for a new trial based on that issue.

V. Instruction on Contributory Negligence

Plaintiff further contends that the trial court committed reversible error when it refused to instruct in the language of BAJI No. 3.40. We find no error.

BAJI No. 3.40 is a jury instruction which may be given in cases where an injured party was required to work in a dangerous situation. The rule of this instruction was stated in Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225 , 231 [ 282 P.2d 69 ]. The instruction reads: “When a person’s lawful employment requires that he work in a dangerous location or a place that involves unusual possibilities of injury, or requires that in the line of his duty he takes risks which ordinarily a reasonably prudent person would avoid, the necessities of such a situation, insofar as they limit the caution that he can take for his own safety, lessen the amount of caution required of him by law in the exercise of ordinary care.” The instruction is a correct statement of law. (Young v. Aro Corp. (1973) 36 Cal.App.3d 240 , 244 [ 111 Cal.Rptr. 535 ].) However, we do not find that it applies to the case at bench.

The Supreme Court in Austin v. Riverside Portland Cement Co., supra, 44 Cal.2d 225 , embraced the rule embodied in BAJI No. 3.40 for the reason that a person working in a situation of possible danger may have a decreased ability to care for his own safety because “ ‘of the necessity of his giving attention to his work.’ ” (Id. at p. 239.) In Austin, the injured plaintiffs received electrical burns when a crane contacted overhead electric wires. These workers were employed on a “rush” job and were performing at night when the wires were not visible.

In

his appeal, Needham alleges that he was employed by Cannonball for the purpose of directing the movie “Cannonball Run.” Thus, he claims he was plaintiff’s’ co-employee, which status bars any civil action and limits plaintiff to the workers’ compensation recovery she had already received. In a related contention, Stuntman contends that Need-ham was not its employee and, hence, is not liable for Needham’s negligent acts. The issue was put to the jury, which found that Needham was not an employee of Cannonball.

“Under the workers’ compensation law, recovery of statutory benefits is an injured employee’s sole remedy against ‘the employer or against any other employee of the employer acting within the scope of his employment. . . .’ (Lab. Code, § 3601, subd. (a); . . . However, this statutory restriction does not affect the employee’s rights to tort damages from persons with whom the employee has no employment relationship. ([Lab. Code,] § 3852; Witt v. Jackson (1961) 57 Cal.2d 57 , 69 [ 17 Cal.Rptr. 369 , 366 P.2d 641 ].)” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486 , 495 [ 162 Cal.Rptr. 320 , 606 P.2d 355 ].)

There are situations in which a “general” employer lends an employee to another employer, creating a “special employment” relationship between the borrowing employer and the employee. In such situations, “the special employer becomes solely liable under the doctrine of respondeat superior for the employee’s job-related torts.” (26 Cal.3d at p.492.) As our state Supreme Court has noted, “[S]pecial employment is most often resolved on the basis of ‘reasonable inferences to be drawn from the circumstances shown.’ Where the evidence, though not in conflict, permits conflicting inferences, 1 “. . . the existence or nonexistence of the special employment relationship barring the injured employee’s action at law is generally a question reserved for the trier of fact.” ’ ([Kowalski v. Shell Oil Co. (1979)] 23 Cal.3d [168] at p. 175 [ 151 Cal.Rptr. 671 , 588 P.2d 811 ], italics added; see also Miller v. Long Beach Oil Dev. Co. (1959) 167 Cal.App.2d 546 , 550 [ 334 P.2d 695 ].)” (Marsh v. Tilley Steel Co., supra, 26 Cal.3d at p.493.)

In conflict with this inference was evidence which showed that Cannonball had final control of the movie. This evidence indicated that the line and executive producers for “Cannonball Run” had authority over Needham and could override his directing decisions.

The existence of certain circumstances will tend to negate the existence of a special employment relationship. These circumstances are: “The employee is (1) not paid by and cannot be discharged by the borrower, (2) a skilled worker with substantial control over operational details, (3) not engaged in the borrower’s usual business, (4) employed for only a brief period of time, and (5) using tools and equipment furnished by the lending employer. [Citations.]” (Marsh v. Tilley Steel Company, supra, 26 Cal.3d 486 , 492.) Moreover, “where the servants of two employers are jointly engaged in a project of mutual interest, each employee ordinarily remains the servant of his own master and does not thereby become the special employee of the other. [Citations.]” (Id. at p. 493.) The jurors were properly instructed to take into consideration the foregoing factors. The evidence is sufficient to sustain the jury’s finding and no allegation is made that the instruction was erroneous.

Stuntman further contends that it must be relieved of liability because the jury, in addition to finding that Needham was not an employee of Cannonball, also answered “no” to the following question: “During the making of the film, ‘The Cannonball Run,’ did Stuntman, Inc. exercise partial concurrent control over Hal Needham as to how he performed his duties as a director?” Stuntman stretches reason and claims we must infer from the jury’s answer a jury finding that Stuntman had no employer-employee relationship with Needham. No such inference can be derived. This question was put to the jurors to cover the possibility that the jury would find that Cannonball, as a borrowing employer, had established an employment relationship with Needham while at the same time it allowed Stuntman, the general employer, to retain a measure of control. The

Whether or not in reality Stuntman, as a corporate entity, was capable in and of itself of controlling Needham is beside the point. As the trial court properly observed in rejecting a Stuntman posttrial motion, Needham was nonetheless Stuntman’s employee and “under those circumstances, whether the corporation which he owns controls him or not, which in reality is impossible, he is nevertheless using that form.” The evidence indicated that Needham’s services were employed by Stuntman whether or not Needham also had the ability, as sole shareholder and president of Stuntman, to control the corporation. Since a private corporation is generally liable under the doctrine of respondeat superior for torts of its agents or employees committed while they are acting within the scope of their employment, as Needham clearly was, Stuntman, was properly assessed liability herein. (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278 , 286 [ 186 Cal.Rptr. 184 ]; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 37, p. 96.)

Needham also relies on Home Box Office v. Directors Guild of America (S.D.N.Y. 1982) 531 F.Supp. 578 . That reliance is misplaced. Under the circumstances presented in that case, the federal district court held that loan-out companies (which Stuntman basically is) do “not alter the character of the employment relation between directors and the production companies for which they work. In sum, nothing in the nature or operation of loan-out companies affects the conclusion that the freelance directors who own such companies are not independent contractors or entrepreneurs.” {Id. at p. 598.)

That case is easily distinguishable. First of all, the determination to be made therein was whether or not agreements between a union (the Directors’ Guild of America) and freelance directors, loan-out companies, and production companies violated antitrust laws or fell under a statutory exemption allowing unions, acting in their self-interest, to combine with employees without antitrust liability. The issue was further refined to a question of whether the directors constituted an eligible labor group pursuant to the United States Supreme Court holding in United States v. Hutche

Finally, the key contract at issue here is not one between the Directors’ Guild and Cannonball nor even between Cannonball and Stuntman. Rather, the contract was between Stuntman and North Shore Investments. We are directed to nothing in the record which suggests that Needham’s independence and creative control fit tightly into the mold described by the federal district court in deciding an antitrust contest between a union and a paid television programming corporation. Moreover, there are clearly other factual distinctions between the relations described in Home Box Office and those presented in the instant case. For example, the federal district court in Home Box Office described how the television network production companies treated the freelance directors as employees for tax purposes; the companies subjected the directors’ compensation to withholding for income and Social Security taxes and reported the compensation on W-2 forms. (531 F. Supp. at p. 594.) In the case at bench, however, Stuntman’s corporate secretary testified that Needham’s W-2 form and tax deductions for the year 1980 (the production year for “Cannonball Run”) were from Stuntman and not from Cannonball.

Hence, the employment relationships of Needham insulated neither him nor Stuntman from liability in the instant matter.

Disposition

The judgment is affirmed. Each party is to bear its own costs on appeal.

Lucas, P. J., and Ashby, J., concurred.

The petition of appellant Von Beltz for review by the Supreme Court was denied May 17, 1989. Kennard, J., did not participate therein.