Musgrove v. Silver

• Decision Date: 25 August 2022
• Docket Number: B311504
• Citation: 82 Cal.App.5th 694,298 Cal.Rptr.3d 582
• Parties: Ronald MUSGROVE et al., Plaintiffs and Appellants, v. Joel SILVER, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

82 Cal.App.5th 694

298 Cal.Rptr.3d 582

Ronald MUSGROVE et al., Plaintiffs and Appellants,

v.Joel SILVER, Defendant and Respondent.

B311504

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

Filed August 25, 2022

As Modified on Denial of Rehearing September 13, 2022

The Wallace Firm and Bradley S. Wallace, Los Angeles, CA; Joseph S. Socher for Plaintiffs and Appellants.

Murchison & Cumming, Corine Zygelman, Los Angeles, CA, and Matthew E. Voss, Los Angeles, CA, for Defendant and Respondent.

HOFFSTADT, J.

As part of an entourage of family and friends, a Hollywood producer brought the executive assistant he employed through his company as well as a French chef he personally employed to a luxurious resort in Bora Bora; the trip was part vacation for both the assistant and the chef, although the assistant met with the concierge to plan the entourage's daily recreational activities and the chef prepared all lunches and dinners. Tragically, the executive assistant drowned when she went for a midnight swim in the lagoon outside her overwater bungalow. The drowning was accidental, and related to her ingestion of alcohol and cocaine in the hours prior to her swim. The executive assistant's parents sued the producer for wrongful death, on the theory that he is (1) directly liable, because he paid all resort-related expenses of the trip, including for alcohol, and (2) vicariously liable, because he employed the chef, who had met up with the executive assistant for a late-night rendezvous when she drank half a bottle of wine and snorted a "significant" amount of cocaine just before going for a swim. In granting summary judgment, the trial court ruled that the producer was not liable under either theory as a matter of law. The primary issue on appeal is whether the chef was acting within the scope of his employment—thereby rendering the producer vicariously liable—when the chef met up with the executive assistant for a nightcap and, by allegedly supplying her with alcohol and cocaine while knowing she liked to swim at night, put her in a position of peril from which he failed to protect her. 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. Because the trial court's ruling on direct liability was also correct, we affirm the judgment for the producer.

FACTS AND PROCEDURAL BACKGROUND

I. Facts

A. A tragic death

In August 2015, 28-year-old Carmel Musgrove (Musgrove) traveled to the Four Seasons Resort on a private island in Bora Bora, French Polynesia. She was one of 14 or 15 people—largely family and friends—whom Hollywood producer Joel Silver (Silver) had invited to accompany him in attending actress Jennifer Aniston's wedding celebration. Musgrove stayed in her own overwater bungalow at the resort. Along with Silver's other guests, she went fishing, played volleyball, and went to the spa. She also attended the group lunches and dinners Silver hosted, where she would regularly drink wine. Silver covered all of the group's expenses on the trip, including alcohol.

On the evening of August 18, 2015, the group ate dinner indoors because the wind was howling and the water, choppy. Musgrove had wine with dinner, but did not become visibly intoxicated. Around 9 p.m., she went to the Silver's family bungalow to watch a movie with his then young children. After agreeing via text message to meet up with 47-year-old Martin Herold (Herold), another member of Silver's encourage, Musgrove told Silver's family she was not feeling well and excused herself to go back to her bungalow a little after 10 p.m.

Musgrove then met up with Herold to "party." Although precisely where they met and precisely what they did is subject to some dispute, it is undisputed that over the next hour or so Musgrove and Herold kissed, Musgrove drank more wine, and Musgrove ingested cocaine.

At some point around midnight, and after departing from her rendezvous with Herold, Musgrove disrobed in her bungalow and climbed down the ladder from her bungalow's platform into the dark waters of the lagoon for a nighttime dip.

Musgrove did not show up at breakfast or lunch the next day.

Her body washed up onto shore the following night. Two autopsies confirmed that her cause of death was accidental drowning, with contributing causes of alcohol and drug use. Her blood alcohol content was 0.20, which is more than twice the legal limit for drinking. She also had a "significant" amount of cocaine in her liver.

B. Employment relationships

1. Musgrove

For many years prior to the August 2015 trip, Musgrove had been working as Silver's executive assistant. She was officially employed by Silver Pictures Entertainment.

Going to Bora Bora was not a requirement of her job. Rather, Silver invited Musgrove to come along if she wanted: If she came, she would continue to receive her salary and would be expected to spend "maybe 10 percent" of her time coordinating with the resort's staff and others in lining up the recreational activities and meals for Silver and his guests; the rest of the time, however, she would be "on vacation" like the others and would have her travel, lodging, and other expenses paid.

Silver did not prohibit his guests from partaking of alcohol at dinner, at the resort's bars, or through room service; conversely, he did not require or pressure anyone to drink. Whether and how much to drink alcohol was up to each guest.

2. Herold

For over a decade prior to August 2015, Silver had personally employed Herold as his "family's personal chef" who would travel with Silver and his family, and prepare their meals. Silver paid Herold a salary and covered all of his travel, lodging, and other expenses, including any alcohol Herold chose to drink.

Herold arrived in Bora Bora a few days before the rest of Silver's entourage in order to purchase groceries for the lunches and dinners he was to prepare during the trip. Herold had no fixed working hours; instead, he was expected to prepare the group's lunches and dinners, but was otherwise free to spend his remaining time however he wished.

C. Personal relationship between Musgrove and Herold

By August 2015, Musgrove and Herold were not strangers. They had met a few years prior, when Musgrove was traveling as Silver's executive assistant and Herold was accompanying Silver's family as their chef.

Before she departed for the August 2015 Bora Bora trip, Musgrove emailed Herold and asked if he got "any ‘candy’ down there." Herold responded that he "got a bag of bora herb," which he later explained meant marijuana. Musgrove was unimpressed, responding, "Meh. U don't [have] a hook up there for the other stuff?" When Herold assured her "Got everything," she responded "What I like to hear" with a smiley face symbol.

Herold also knew that Musgrove enjoyed swimming in the lagoon near the overwater bungalows.

II. Procedural Background

A. Pleadings

In August 2017, Musgrove's parents—Ronald and Ann Musgrove (collectively, plaintiffs)—sued Herold and Silver for the wrongful death of their daughter.¹ In the operative second amended complaint,² plaintiffs alleged that Herold and Silver were liable because they had "exposed" Musgrove to "an unreasonable risk of harm" by "furnishing" her with "an excessive amount of alcohol" and "drugs," and simultaneously "promoting dangerous activities, including alcohol consumption, drug consumption, and swimming in a lagoon late at night during unfavorable conditions." Plaintiffs more specifically alleged two theories of liability against Silver—namely, that Silver was (1) directly liable for Musgrove's death because he "caused [her] to be in a vulnerable state on the night" of her death, and (2) "vicariously liable for the negligence" of Herold because Herold was "acting within the course and scope of [his] ... employment at the time of [Herold's] negligence."

B. Summary judgment

Silver moved for summary judgment. Following a full round of briefing, evidentiary objections, and a hearing, the trial court granted Silver's motion. The court ruled that Silver was not directly liable for Musgrove's death because Silver had no "special relationship" with Musgrove that would legally obligate him to "assume[ ] control of her safety and welfare"; to hold Silver directly liable simply because Musgrove "accompanied him" to Bora Bora, the court reasoned, would "contradict[ ]" California tort law. The court further ruled that Silver was not vicariously liable for Musgrove's death. Although the court found triable issues of fact as to whether Herold owed Musgrove a duty of care and breached that duty, the court concluded as a matter of law that Silver was not vicariously liable for Herold's arguably negligent conduct "in placing Musgrove in a position of peril" by plying her with alcohol and drugs and then not protecting her from swimming. More specifically, the court reasoned that Herold's conduct was outside the scope of his employment by Silver because (1) it was "not an ‘outgrowth’ of his employment [as a chef or] ‘inherent in the working environment,’ " (2) it was not " ‘typical of or broadly incidental to’ [Silver's employment of him as a chef] or, in a general way, foreseeable from [Herold's] duties"; and (3) it was "neither a benefit to the company nor a customary incident" of Herold's "employment relationship" with Silver because Herold's work as a chef "did not cause him to invite Musgrove to his bungalow or to put her in a vulnerable situation and to not protect her from danger."

C. Appeal

Following entry of judgment, plaintiffs filed this timely appeal.

DISCUSSION

Plaintiffs argue that the trial court erred in (1) granting summary judgment, and while doing so, (2) not excluding portions of Silver's declaration as impermissible and conclusory lay opinion. We need not consider...