Joel Silver Not Liable for Assistant’s Bora Bora Drowning, Appeals Court Affirms
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Joel Silver is not liable for the death of his former assistant during a star-studded trip to French Polynesia in the summer of 2015, according to a new California appellate opinion that affirms a summary judgment ruling from last year.
Carmel Musgrove’s parents in 2017 sued Silver, his company, and his chef Martin Herold for wrongful death. They claim she was in Bora Bora for several weeks on a work trip, which was part of a celebration following Jennifer Aniston and Justin Theroux’s wedding, and drowned in the lagoon outside her bungalow while under the influence of cocaine and alcohol. Their suit also said French authorities found fatigue caused by overwork and heat stroke contributed to her death, which apparently occurred during a midnight swim in unfavorable weather conditions after meeting up with Herold for a nightcap.
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L.A. County Superior Court Judge Dennis Landin in February 2021 granted summary judgment in Silver’s favor, finding he was not directly liable in her death because he didn’t have a “special relationship” with Musgrove that would have legally obligated him to ensure her safety and welfare. Under the law, such relationships include parent-child, airline-passenger and teacher-student, for example. Employer-employee relationships can qualify, but only if the employee is acting within the scope of employment. Her being in Bora Bora because she worked for him isn’t enough under California law. Landin also found Herold’s actions were not “an ‘outgrowth’ of his employment, ‘inherent in the working environment,’ ‘typical of or broadly incidental to’ the employer’s business, or, in a general way, foreseeable from the employee’s duties.”
On appeal, the key issue was whether Silver, as Herold’s employer, could be vicariously liable for the chef’s actions leading up to Musgrove’s drowning.
“Although the precedent on vicarious liability is untidy, we hold that the chef’s late-night activities with the assistant were not within the scope of his employment under each of the four tests articulated by the California courts for assessing the scope of employment for purposes of imposing vicarious liability,” writes Associate Justice Brian M. Hoffstadt in the opinion, which is embedded below.
Those four tests analyze risk, forseeability, benefit and custom, and public policy.
In order for Silver to be vicariously liable for Herold’s conduct, the chef must have “engaged in negligent conduct” that caused Musgrove’s death while acting within the scope of his employment. Here, negligence is “placing a third party in a position of peril and then failing to protect them from that peril.” Looking at the evidence in the light most favorable to Musgrove’s parents and her estate, which assumes Herold engaged in negligent conduct for the purposes of analysis, the appeals court agreed that Silver isn’t liable because such conduct didn’t arise from the chef’s employment.
These were the key holdings under the four tests:
Risk: “Herold’s conduct in meeting up with Musgrove at 10 p.m. in one of their private bungalows to consume wine and cocaine was not required by, engendered by, or any outgrowth of Herold’s job as Silver’s chef.”
Forseeability: “Herold’s conduct in furnishing Musgrove with additional alcohol and with cocaine while aware that she might try to go swimming was not, as a matter of law, a ‘reasonably foreseeable’ result of his employment as Silver’s personal family chef.”
Benefit and custom: The conduct at issue “did not in any conceivable way benefit Silver’s employment of Herold as his family’s personal chef” and “was not a ‘customary incident’ of the employment relationship; there is no evidence that anything like this had ever happened before with anyone in Silver’s employ.”
Public policy: “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.” Here, the alleged conduct “is ‘simply too attenuated’ from his job duties as a chef to make it equitable to tag Silver with liability.”
The appeals court also agreed with Landin’s finding that Silver was not directly liable for Musgrove’s death. It found Silver didn’t supply anyone with cocaine, that allowing his assistant to drink wine served at meals he paid for is insufficient to establish liability for her alcohol consumption, and that “his duty to protect his employees is limited to while they are ‘at work’ or otherwise in a locale the employer controls.”
Hoffstadt writes, “Here, the undisputed facts show that what Musgrove needed protection from was her further alcohol consumption and ingestion of cocaine while in a private bungalow after 10 p.m.; that she was not ‘at work’ or undertaking any work-related activities when she did so; and that Silver had no control over any private bungalow at the resort other than his own. On these facts, Silver had no employment-related duty to protect Musgrove. The fact that Silver expensed the bungalow is not enough as a matter of law.”
Brad Wallace, an attorney for the Musgroves, on Tuesday sent The Hollywood Reporter a statement via email in response to the decision. They intend to petition for a rehearing with the Court of Appeals and file a petition for review with the California Supreme Court.
“[W]e disagree with the factual and legal basis of the decision as it pertains to the course and scope issue in affirming the trial court’s ruling for Defendant Joel Silver,” Wallace writes. “The published decision itself acknowledged that ‘the precedent on vicarious liability is untidy’, ‘difficult’, ‘imbued with policy considerations,’ and in part from the fact that the courts – while agreeing that the scope of employment should be “interpreted broadly” – have nevertheless articulated no fewer than four different tests for assessing whether particular acts should be deemed to be within the scope of employment and hence a basis for imposing vicarious liability.’”
Silver Pictures settled with the family in 2020, and the claims against Herold are still pending. Earlier this month he withdrew a motion for summary judgment pending the outcome of the appeal. Herold’s filing states that Musgrove’s death was a tragic accident, but he alleges she continued drinking and using drugs after leaving his bungalow and argues he is not responsible for “an adult woman who chose to drink to excess and use cocaine while alone in her room, and then proceeded to swim in waters that she knew were dangerous.”
Wallace also gave THR a statement regarding Herold. “[T]he Court of Appeal’s decision makes clear that they ‘independently agree with the trial court’s conclusion that there exists disputes of material fact regarding whether Herold engaged in negligent conduct by placing Musgrove in peril (by supplying her with alcohol and, allegedly, cocaine in the late evening while knowing that she enjoyed swimming at night in the lagoon), and then failing to protect her from that peril.’ As a result, this case will now proceed to a jury trial in Los Angeles Superior Court against, at a minimum, Defendant Martin Herold for Mr. & Mrs. Musgrove’s loss of love, companionship, comfort, care, affection, and society related to the tragic death of their beautiful 28 year old daughter, Carmel Musgrove.”
