Anton Chekhov famously observed that any gun introduced to a story must be fired. And indeed Hollywood producers and directors have followed that rule without fail for about 100 years, recently with tragic consequences on the set of Alec Baldwin’s film Rust.
While much remains unknown about the events that took the life of cinematographer Halyna Hutchins on Friday, October 21, 2021, one thing is certain: the events have exposed a number of parties to civil and even potentially criminal liability. Regardless of what criminal charges may or may not arise from the incident, it seems likely that civil litigation is inevitable. Unlike criminal cases which must be proved beyond a reasonable doubt, and typically require a showing of intent or knowledge, civil cases have a lower burden of proof called preponderance of evidence. Here is a rundown of potential actions.
Based on what we know, it appears that a series of bad decisions by multiple people allowed this tragedy to occur. While individual members of the cast or crew could be held liable for their own negligent conduct on an individual basis, their employers also have corresponding vicarious liability for harm caused by the cast’s or crew’s actions taken within the scope of their employment.
This means that the estate of Halyna Hutchins could sue anyone who inspected or handled the prop gun prior to the shooting, as well as anyone who had the right to direct or control safety on set, including crew members responsible for the prop gun. This includes the production companies and individual producers (including Alec Baldwin himself), who hire and fire the cast and crew and who under industry standards are typically responsible for overseeing safety on set and ensuring that safety protocols are implemented and followed. This would also include the Assistant Director (who apparently inspected the prop gun before handing it to Baldwin), and Director (who himself was shot) both of whom are in a position to stop unsafe practices, correct safety issues, and decide whether to use real guns for authenticity while risking the safety of others. Producers and directors who knew or should have known about safety concerns also could be liable if they failed to properly address these issues. And of course, the Armorer, who presumably had specialized training, faces potential liability for failing to ensure the gun’s safety before allowing it to be used on set.
Claims against the gun manufacturer are a little trickier but certainly possible. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act (“PLCAA”), which prohibits causes of action against manufacturers or distributors of firearms for harm caused by the criminal or unlawful misuse of a firearm. The Hutchins estate, therefore, would not be able to bring a claim seeking to hold the gun manufacturer liable for harm caused by a crime committed with the prop gun. The Sandy Hook school shooting case illustrates just how difficult it can be to sue gun manufacturers for harm caused by their products during the commission of a crime. In Soto et al. v. Bushmaster Firearms Int’l, LLC, et al., the Connecticut Supreme Court, citing the PLCAA, dismissed all but one claim brought by the estates of the victims of the Sandy Hook school shooting. 202 A.3d 262 (Conn. 2019), cert. denied by 140 S. Ct. 513 (2019). The court allowed an unfair trade practices claim alleging that the gun manufacturers had illegally marketed the gun by promoting its use for assaults on civilians, and that this conduct was a proximate cause of their decedents’ deaths. Id. at 302. In addition, the PLCAA does not prohibit claims for wrongful death against gun manufacturers arising from the manufacturer’s breach of contract or warranty. See 15 U.S.C. § 7903(5)(A)(iv) & (v). In other words, the estate could sue the gun manufacturer for wrongful death caused by a design or other defect, or by a failure to warn.
The estate likely would have a difficult time suing Ms. Hutchins’ union for failing to provide her with a safe workplace, as those claims would typically be preempted by the Labor Management Relations Act, unless the language in the collective bargaining agreement placed a duty of care on the union (distinct from the duty of care owed by Ms. Hutchins’ employer) that would be enforceable against the union by the individual employees. See Int’l Bhd. of Elec. Workers, AFL-CIO v. Hechler, 481 U.S. 851, 851 (1987).
The estate likely will file a claim with Ms. Hutchins’ life insurance company, assuming she had a policy, and the carrier likely will pay out a death benefit to Ms. Hutchins’ beneficiary under the policy. Unlike property, casualty, and other types of insurers, the life insurance company would not be able to recover the payment of the life insurance proceeds from the other target defendants. This is because life insurance policies do not permit so-called “subrogation” claims, where an insurer that pays a claim succeeds to the rights of its insured.
Finally, while there may be a potential class of derivative plaintiffs, such as investors, screenwriters, or anyone whose compensation may be negatively impacted by these events, such claims are speculative at this point. Investors’ rights with respect to any financial losses likely are governed by their respective contracts with the production company. Moreover, tort claims based on purely economic losses are typically limited by the economic loss rule, which bars a recovery in tort when damages are purely economic without accompanying property damage or personal injury.
In sum, while much remains uncertain about how these tragic events unfolded, legal claims are most certainly unavoidable and any of the potential defendants outlined above would be well advised to notify their insurance carriers of a potential claim.
Mr. Conn and Ms. Matloff are partners in the Boston firm of Conn Kavanaugh Rosenthal Peisch & Ford, LLP, where they frequently defend civil liability claims. Legal research support by Dayana Donisca, JD. © All rights reserved to Conn Kavanaugh Rosenthal Peisch & Ford, LLPShare with your network: