LOS ANGELES (Legal Newsline) – A bottle of wine and some cocaine weren’t part of the job duties for the private chef of a Hollywood producer, a California appeals court has ruled.
The Second Appellate District ruled for Joel Silver - who produced movies like Die Hard, Lethal Weapon and Predator – on Aug. 25 in a lawsuit over the accidental drowning of his executive assistant.
Carmel Musgrove traveled with a group of 14 people to Bora Bora with Silver for the wedding of Jennifer Aniston and Justin Theroux. Musgrove and chef Martin Herold met late on Aug. 18, 2015, with Musgrove drinking wine and ingesting cocaine.
Around midnight, she climbed the ladder from her bungalow into a lagoon to swim, but she drowned. Her body washed up on the shore the next day. Her blood alcohol content was .20 and she had a “significant” amount of cocaine in her liver.
Her family tried to sue Silver, arguing Herold was acting within the scope of his employment with Silver when he provided wine and cocaine to Musgrove. If the plaintiffs could prove that was the case, they could hold Silver vicariously liable.
The Second District said the pertinent case history on the issue is “untidy” but ruled the plaintiffs failed to satisfy four tests, which ask:
-Whether the risk engendered by the employee’s conduct can be regarded as typical of his or her job;
-Whether the conduct could be reasonably foreseen by the employer;
-Whether the conduct either provided benefit to the employer or has become a “customary incident”; and
-Whether a finding the employer is vicariously liable would be sound public policy.
“The evidence before the trial court at the time of summary judgment refuted the allegation that Silver ‘furnished’ Musgrove with drugs; to the contrary, the undisputed facts showed that Silver did not supply anyone with cocaine, or have any knowledge that anyone was ingesting it,” the ruling says, noting a text message exchange regarding drugs between Musgrove and Herold.
“At most, the undisputed evidence showed that Silver furnished Musgrove with alcohol in two ways – by allowing her to drink the wine served with the meals prepared by Herold and by covering the cost of any alcohol she purchased at the resort.
“This is insufficient, as a matter of law, to establish liability.”
Another problem with the case was that Musgrove was employed by Silver Pictures Entertainment, and not Silver himself.