McHenry v. Asylum Entm't Del., LLC

• Decision Date: 12 March 2020
• Docket Number: B292457
• Court: California Court of Appeals Court of Appeals
• Parties: Eddy MCHENRY, Plaintiff and Appellant, v. ASYLUM ENTERTAINMENT DELAWARE, LLC, Defendant and Respondent.

46 Cal.App.5th 469

260 Cal.Rptr.3d 51

Eddy MCHENRY, Plaintiff and Appellant,

v.ASYLUM ENTERTAINMENT DELAWARE, LLC, Defendant and Respondent.

B292457

Court of Appeal, Second District, Division 2, California.

Filed March 12, 2020

Kiesel Law, Paul R. Kiesel, Beverly Hills,Steven D. Archer, and Melanie Palmer, Beverly Hills, for Plaintiff and Appellant.

Arnold & Itkin and Cory Itkin (admitted pro hac vice), for Plaintiff and Appellant.

Esner, Chang & Boyer, Stuart B. Esner, Los Angeles, and Steven T. Swanson, for Plaintiff and Appellant.

Cox, Wootton, Lerner, Griffin & Hansen, Terence S. Cox, Los Angeles, Mitchell S. Griffin, and Mark E. Tepper, San Francisco, for Defendant and Respondent.

HOFFSTADT, J.

A seaman on a commercial fishing vessel out on the Gulf of Mexico accidentally sliced up his hands with hooks and fish gills. The vessel’s captain arranged to have a second vessel meet them at sea and ferry the seaman back to shore so he could get medical attention. The middle-of-the-night rendezvous on the high seas was a success but did not come soon enough to save all of the seaman’s fingers; due to infection, many had to be amputated. These dramatic events were all caught on film because, as serendipity would have it, a production company was filming a reality TV show on the fishing vessel as these events unfolded. The seaman sued the vessel’s owner and the production company, among other parties, for his injuries under federal maritime law.

The viability of the seaman’s lawsuit against the production company requires us to address the following questions: (1) Is the production company liable under the Jones Act ( 46 U.S.C. § 30104 ) because it "borrowed" the crew members as "employees" by filming them doing their jobs and by occasionally asking them to repeat what they are doing for the camera and explain it, and (2) Is the production company liable under maritime tort law because (a) it had a "special relationship" with the crew members it was filming sufficient to give rise to a duty to rescue them, (b) it voluntarily assumed a duty to rescue but effectuated that rescue with gross negligence, worsened the crewman’s position or caused the crewman to detrimentally rely on its rescue efforts, or (c) it acted negligently in "taking charge" of a "helpless" person within the meaning of Restatement First and Second of Torts, section 324? We conclude that the answer to these questions is "no," and affirm the trial court’s grant of summary judgment in favor of the production company.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. The Big Fish Texas Production

Asylum Entertainment Delaware, LLC (Asylum) is a production company that films reality TV shows. In early 2015, NGC Network US, LLC (National Geographic) hired Asylum to produce eight episodes of a reality TV show that would follow the trials and tribulations of life on a commercial fishing vessel in the Gulf of Mexico; the show was to be called Big Fish Texas .

To facilitate this show, National Geographic negotiated with Keith "Buddy" Guindon (Buddy)¹ to allow Asylum to film the crew of The M/V Black Jack IV , one of several commercial fishing vessels Buddy owned, on a two-week voyage starting in late March 2015. Buddy signed a Location Release Form authorizing the filming, and National Geographic agreed to pay him $5,000 per episode. On that voyage, the captain of The M/V Black Jack IV was Buddy’s son, Hans Guindon (Hans). All of the vessel’s crew members signed an Appearance Release Form , and received no additional compensation for doing so. That form gave Asylum permission to "tape and photograph [each member], and record [his or her voice]," and granted Asylum "exclusive owner[ship] of the results and proceeds of such taping."

Asylum arranged for two of its employees—a producer and a cameraman—to be passengers on The M/V Black Jack IV during the voyage.

B. Plaintiff’s hiring

Days before The M/V Black Jack IV was to shove off, Buddy hired Eddy McHenry (plaintiff) to serve on its crew as an "independent contractor."

Plaintiff had experience owning and working on a shrimping boat on the Gulf, but had never served aboard a commercial fishing vessel like Buddy’s. Because this was plaintiff’s first time as a crew member on this type of vessel, he was dubbed a "greenhorn." Plaintiff signed a Release and Waiver of Liability with The M/V Black Jack IV . Like the other crew members, plaintiff also signed an Appearance Release Form with Asylum.

C. The voyage

1. The Asylum employees’ role

The "primary duty" of the Asylum employees on board The M/V Black Jack IV was to "observe[ ] and document[ ]" the crew’s activities, especially those that "would appeal to the public interest." They were to be the proverbial "flies on the wall." On occasion, the producer or cameraman would ask crew members to repeat an activity a second time while it was being filmed, or to articulate or explain what they were doing. At no point, however, did either Asylum employee tell any crew member "what to do" or have any authority to direct the fishing operations of The M/V Black Jack IV .

2. Plaintiff’s injury

Two or three days after The M/V Black Jack IV left port from Galveston, Texas, plaintiff ended up cutting his hands on hooks or fish gills. His hands became sore and swollen, and he could no longer grip anything with them. At the suggestion of, and with the aid of, another crew member, plaintiff cut his hands with a razor blade in order to drain the excess fluid and puss from his wounds

; he then submerged his hands in rubbing alcohol to disinfect them. The Asylum employees filmed the cutting. The cutting only made his hands worse; they became even more "swollen" and "pussy" and turned "kind of ... green."

3. Reacting to the injury

Panicked by the worsening condition of his hands, plaintiff asked Asylum’s producer and its cameraman for help. Although the producer reported that he promised only to "pass ... on" this news to Hans, the captain, plaintiff reported that both the producer and cameraman further promised to "get [plaintiff] a helicopter [to] get [him] off the boat."

Plaintiff did not sit idly by, however. He also directly told Hans about his worsening condition and asked to be evacuated.

Hans considered "three courses of action" for getting plaintiff proper medical attention: (1) returning The M/V Black Jack IV to Galveston, (2) rendezvousing with Buddy, who could then take plaintiff back to Galveston on a faster ship, or (3) calling the Coast Guard to see if they would send a helicopter to evacuate plaintiff. In making his decision, Hans consulted with several people. Hans asked the on-board producer for his input, and the producer said it "wouldn’t hurt to call the Coast Guard and alert them." Hans "talk[ed] through options" with Asylum’s "production team" back on shore, and the lead producer felt that plaintiff’s "health" was of "primary" concern. Hans also consulted with his father, Buddy. Hans ultimately decided to have Buddy rendezvous with The M/V Black Jack IV in Buddy’s high-speed boat, The M/V Hullraiser . This decision was Hans’s and Hans’s alone.

4. The rescue

Buddy left Galveston in The M/V Hullraiser around sundown on the day the decision was made to evacuate plaintiff.

Asylum arranged for an emergency medical technician (EMT), a camera operator and an Asylum producer to be on that ship. The EMT arrived at the dock about three hours before The M/V Hullraiser departed, and while he waited to depart, signed an Appearance Release Form and was fitted with a microphone. The M/V Hullraiser departed the moment Buddy was ready; as Buddy later explained, "I didn’t wait for anyone."

A few hours past midnight, The M/V Hullraiser rendezvoused with The M/V Black Jack IV on the dark waters of the Gulf. Plaintiff was transferred to The M/V Hullraiser . The EMT was able to assess plaintiff’s condition, but was unable to treat it because he had no antibiotics. The two Asylum employees aboard The M/V Hullraiser did not tell the EMT "how to do [his] job," but asked him general medical questions and implored him to check on plaintiff every 30 to 60 minutes, which was the EMT’s practice anyway. The EMT later stated that these questions both did and did not interfere with his treatment of plaintiff.

Upon reaching shore, plaintiff was immediately transported to the emergency room of a Galveston hospital.

5. The outcome

Plaintiff ended up losing three fingers to infection.

Plaintiff’s injury, the deliberations over how to evacuate him, and the rescue itself were featured prominently in the final episode of the Big Fish Texas season dedicated to The M/V Black Jack IV.

II. Procedural Background

In June 2017, plaintiff sued (1) Buddy, Hans and several related companies owned by the Guindons,² and (2) Asylum.³ He alleged that these defendants were responsible for his injuries under (1) the Jones Act ( 46 U.S.C. § 30104 ), (2) negligence and negligence per se under general maritime law, and (3) the failure to provide prompt medical care.⁴

Plaintiff settled with Buddy, Hans and their companies.

In March 2018, Asylum filed a motion for summary judgment and/or summary adjudication. After entertaining a full round of briefing and argument at a hearing, the trial court issued and ultimately adopted an 11-page tentative ruling granting summary judgment to Asylum. The court ruled that plaintiff’s Jones Act claim failed as a matter of law because plaintiff was neither a "direct" employee nor a "borrowed servant" of Asylum’s. The court further ruled that plaintiff’s remaining tort claims failed as a matter of law because Asylum had no "special relationship" with plaintiff obligating it to rescue him and because Asylum did not undertake a rescue of plaintiff in a manner that was grossly negligent or that otherwise put plaintiff in a worse position.

Following the entry of judgment, plaintiff filed this timely appeal.

DISCUSSION

Plaintiff argues that the trial court erred in granting summary judgment in Asylum’s favor because triable...