Gregg Jarrett on what's next in Baldwin-involved fatal prop gun accidental shooting
Fox News legal analyst Gregg Jarrett reveals potential legal troubles after tragedy on set of Alec Baldwin movie.
The fatal shooting at Bonanza Creek Ranch already has the makings of a blockbuster legal action. Within 24 hours of actor Alec Baldwin fatally shooting cinematographer Halyna Hutchins and wounding the director, witnesses have raised serious questions of negligent and unsafe practice on the site for the low-budget film, "Rust." That has led to question of both criminal and civil liability for Baldwin and others involved in the tragic shooting.
CRIMINAL LIABILITY
The question raised most often in the aftermath of the shooting is whether Baldwin could be charged criminally. The answer, in one word, is "yes." However, much depends on the still unfolding facts around this fatal mishap with the prop gun.
There is no indication that Baldwin knew that that prop gun was "live" or that he personally loaded the gun. To the contrary, recent reports indicate that he was handed the gun by an assistant director who reportedly declared "cold gun," or a gun with no live ammunition. That is notable since an earlier recorded message of a crew member complained that the incident was the fault of an assistant director, who was supposed to check the gun.
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If true, Baldwin had little reason as an actor to suspect anything was wrong with the prop. The problem is that Baldwin was not simply an actor. He was also one of the producers on a site that had reportedly experienced prior discharges and complaints about site safety.
New Mexico has a provision that allows "involuntary manslaughter" charges for "the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection." If there was a pattern of neglect, including prior discharges from these prop weapons, the producers could be charged with involuntary manslaughter. Such a charge is a fourth-degree felony in New Mexico, with a penalty of 18 months jail time and up to $5,000 in fines.
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The difficulty for criminal defense attorneys in dealing with such charges is that they do not require "specific intent." Given prior deaths from prop guns (as with Brandon Lee in the movie "The Crow"), the danger of a fatal mistake was foreseeable. However, such charges are rare and unlikely in this case absent stronger evidence of knowledge or involvement by Baldwin in the preparation or handling of these props.
For example, in the killing of Lee, it was later determined that the tip of a .44-caliber bullet had become lodged in the barrel of the prop gun weeks before the scene was shot. Actor Michael Massee was told that the gun had blanks when he shot Lee at close range. No criminal charges were brought in the case.
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The individuals most at risk of such a criminal charge are the assistant director and prop manager.
CIVIL LIABILITY
The most likely liability for Baldwin would stem from civil liability in the form of a wrongful death action. Indeed, the question is not whether but when the first torts lawsuit will be filed.
Again, we now know from accounts that the movie set was the source of long-standing complaints over safety and working conditions. The production company allegedly required workers to drive 50 miles a day rather than pay for hotels, according to witnesses. Workers complained that this left them exhausted on the set. The site turns out to be the same location used in past Westerns because of its remote and rugged terrain. (As a Western movie buff, one of the movies stood out as a favorite: "The Man From Laramie").
Labor trouble at the site could serve to document such complaints. Labor disputes are often written up by a shop steward or labor representative at a work site.
The low-budget description of this production could add to questions of whether precautions or protocols were shorted or ignored on the set.
There were as many as three prior accidental discharges of weapons on the set. The conflicts over conditions on the set reportedly led to a demand that union members leave the set at one point.
The low-budget description of this production could add to questions of whether precautions or protocols were shorted or ignored on the set.
The use of a live round (or the presence of a projectile) is itself circumstantial proof of negligence. Again, prop guns have been known to kill actors like Brandon Lee, so such accidents are foreseeable.
The family of Hutchins could seek to prove negligence in a wrongful death case through res ipsa loquitur. The doctrine is used when an accident would not ordinarily occur "in the absence of someone’s negligence." Other criteria like exclusive control over the instrumentality (here the prop) must be established.
A live round in a prop gun does not ordinarily occur absent negligence. The question of the exclusive control of the instrumentality can be challenged but the plaintiff could argue that the production company continued to have such control.
Even without the use of res ipsa loquitur, the negligence of the act seems abundantly clear. This incident could well prove a violation of a statute or regulation making the act "negligent per se." The violation of a statutory or regulatory standard of care in the use of prop weapons would allow a jury to assume negligence and proceed to questions of causation and defenses.
There are already witness statements that would fill out such a negligence narrative for trial. One crew member is quoted as saying "There were no safety meetings. There was no assurance that it wouldn’t happen again. All they wanted to do was rush, rush, rush."
Another said there were three accidental discharges and the set was "super unsafe."
Yet another witness said, "Corners were being cut – and they brought in nonunion people so they could continue shooting."
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In addition to negligence, there could be claims for the intentional or negligent infliction of emotional distress. Anyone who was injured or impacted by the accident could easily make such a claim. It can be more difficult for a bystander like the other members of the crew.
New Mexico has an intentional infliction of emotional distress claim that can be based on "reckless" conduct. It also has a negligent infliction of emotional distress claim, but it is more limited when it comes to bystanders. As shown in cases like Fernandez v. Walgreen Hastings Co. (1998), bystanders can recover for emotional distress damages only when the injury is caused by a sudden, traumatic event and the plaintiff was aware that the event was causing injury to the victim.
Obviously, the clearest case could be brought by the family of Hutchins as a wrongful death action. They could also seek punitive damages in such a case. Compensatory damages cover both economic and non-economic damages. That includes pain and suffering and loss of enjoyment of life. While rare, New Mexico does not limit punitive damages, which can be sought for torts that are malicious, willful, reckless, wanton or fraudulent.
This case would seem a compelling application of punitive damages. It would have cost little to check the gun before it was used on the set.
If there is a criminal charge, a court could opt to delay any tort action until after the prosecution. However, the statute of limitations is three years for personal injury cases. They need only to file within that time. Indeed, a prosecution could strengthen the case by benefitting from evidence acquired by police and produced by the prosecution.
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In the end, the liability may be delayed but will likely be considerable. The attorneys for the production company are likely to move quickly to seek settlements of civil claims, particularly with the family.
What is clear is that personal injury lawyers will view the Bonanza Ranch as aptly named for civil litigation.