Von Beltz v. Stuntman, Inc.

• Decision Date: 23 February 1989
• Citation: 207 Cal.App.3d 1467,255 Cal.Rptr. 755
• Parties: Heidi VON BELTZ, Plaintiff and Appellant, v. STUNTMAN, INC., et al., Defendants and Appellants. Civ. B022306.
• Court: California Court of Appeals

Page 755

255 Cal.Rptr. 755

207 Cal.App.3d 1467

Heidi VON BELTZ, Plaintiff and Appellant, v. STUNTMAN, INC., et al., Defendants and Appellants.

Civ. B022306.

Court of Appeal, Second District, Division 5, California.

Feb. 23, 1989.

Review Denied May 17, 1989.

Belli and Sabih, David S. Sabih, Beverly Hills, and Leonard Sacks, Encino, for plaintiff and appellant.

Waters, McCluskey & Boehle, Fritz Hax, Santa Monica, Greines, Martin, Stein & Richland, Irving H. Greines, Alan G. Martin, Pamela Victorine, Pamela Dunn, Beverly Hills, Daniels, Baratta & Fine, John P. Daniels, James I. Montgomery, Jr., and Judith A. Oljey, Los Angeles, for defendants and appellants.

BOREN, Associate Justice.

I. INTRODUCTION

Does a movie stuntperson assume the risk of injury by performing a movie stunt? Is a stuntperson who fails to employ a seat belt during an automobile stunt contributorily negligent? These are the two principal questions addressed in this appeal.

Motion pictures remain one of the premier forms of entertainment in today's world. Movies frequently entertain through flights of fantastic adventure, heavily laden with excitement and danger. Motion picture producers and directors are often able to achieve such results by employing tricks of the trade (e.g., animation, trick photography, special effects, and clever splicing and editing). Some producers and directors, on the other hand, resort to photographing adventuresome activities which are nearly as dangerous as they appear on screen and which sometimes imperil those in front of and behind the camera.

The motion picture industry has long employed seemingly fearless and hardy stuntpersons to perform activities too hazardous for professional actors to undertake. Frequently, these stuntpersons achieve spectacular results without injury. Other times, as here, adventure becomes misadventure.

Plaintiff sued defendants Hal Needham ("Needham") and Stuntman, Inc. ("Stuntman") for catastrophic injuries she received when an automobile in which she was riding collided with a van during the filming of the movie "Cannonball Run." The vehicle in which plaintiff was riding had no seat belts. The jury assessed the injury as worth $7,000,000.00. It found both defendants liable in negligence but also found plaintiff contributorily negligent to the extent of 35 percent. The trial judge offset the damages by plaintiff's 35 percent contributory negligence and by amounts previously awarded under settlements with other defendants not party to this action (e.g., Cannonball Productions, Inc.) and gave judgment to plaintiff in the amount of $0.00. All three parties have appealed. We affirm the judgment.

II. FACTS

Needham, himself a former movie stuntperson, is a motion picture director. He was the president and sole shareholder of Stuntman, which is a so-called "loan-out" company which contracted out Needham's services as a director. Stuntman's only employee beside Needham was his secretary. Plaintiff is a young woman, who, prior to her injuries, was not only a stuntwoman but an aspiring movie actress and ski instructor. Her professional stunt experience included driving a stunt car in another Hal Needham film, "Smokey and the Bandit II."

Needham, acting on behalf of Stuntman (and thus, of course, of himself) contracted with North Shore Investments to make a movie entitled "Cannonball Run." Other financial interests were brought in and Cannonball Productions, Inc. ("Cannonball") was formed as the company to produce the movie. Needham became the film's director. Plaintiff was one of several persons hired by Cannonball as stuntpersons for the movie.

Filming began in Los Angeles about three to four weeks before the accident, then went on location in Georgia and Florida. The location had shifted to a desert area near Las Vegas when the accident occurred on June 25, 1980. On that date, plaintiff was assigned to be the passenger in a 1962 Aston-Martin sports car which itself was the double of another Aston-Martin used elsewhere in the film. The Aston-Martin used in the stunt, a vintage automobile, had no seat belts. ¹

When the sports car was delivered to the movie set, the stunt driver, James Nickerson, found it had defective steering, bald tires, and a malfunctioning clutch. Another car had to push it to get it started and then it would not surpass eight miles per hour. Needham had to delay filming of the stunt while the car was repaired. Whether or not the vehicle was in fact fully repaired was disputed at trial. Nickerson also informed Needham about the lack of seat belts and requested that seat belts be installed. They were not. After some repairs, Nickerson and stunt coordinator Bobby Bass gave it a test drive.

What may be referred to as the stunt was actually the second of two "takes." Plaintiff, as passenger, was to assist a special effects man who was to operate a smoke machine placed behind the car's bucket seats. She was not included in the conversations Needham held with the stunt drivers when he discussed his plans for the stunt. ²

In the first take, the driver, Nickerson, drove the Aston-Martin southbound on a highway so as to encounter five northbound cars driven by other stunt drivers. One of these cars was the Ford van with which the Aston-Martin collided in the second take. In the first take, the Aston-Martin, as planned, cut across the front of this opposing traffic and onto the opposite shoulder, passed the oncoming cars, and then returned to the highway, continuing south. The camera operators were using their lenses to create the illusion that the vehicles were passing closer together than they actually were. This maneuver was performed without incident and plaintiff thought the sports car operated perfectly.

Dissatisfied with the effect filmed in the first take, Needham decided to try again. The second take began about 30 minutes after the first one had ended. Before the second take began, Needham told the stunt drivers to "pick ... up" the pace. Needham wanted the Aston-Martin to weave in and out of the oncoming cars in serpentine fashion. He also told Nickerson to double the speed. An escape route was planned which required Nickerson to turn to the right. No one informed plaintiff that the second take would be different from the first stunt maneuver. During this second take, the Aston-Martin traveled at approximately 50 miles per hour. Nickerson saw that a collision with the Ford van was imminent but was unable either to take the escape route or to avoid collision with the van. As the result of the collision, both Nickerson and plaintiff were hospitalized. Plaintiff was permanently and totally paralyzed from the neck down.

Evidence was also presented that, by custom, stuntpersons have ultimate control over their stunts, provide their own safety equipment, and are paid "stunt adjustments," which are negotiated after the stunt and are based on the stunt's degree of hazard. Stuntpersons may refuse to perform a stunt or may require the stunt coordinator, assistant director or production manager to make safety equipment available. Evidence indicated, however, that, if a stuntperson refused or hesitated to participate in a stunt, his or her employment on the movie might be terminated.

On the "Cannonball Run" set were 10 extra seat belts which could be installed upon request. Other "Cannonball Run" stuntpersons had even ordered "five-point" safety harnesses installed in vehicles already equipped with ordinary seat belts before proceeding with driving stunts in the movie. There was testimony that seat belts or harnesses could have been installed within 20 minutes.

Plaintiff's expert testified that if plaintiff had been wearing a lap-shoulder belt at the time of the collision, her injuries would have been no more than fractured ribs.

III. ASSUMPTION OF RISK

Needham contends in his cross-appeal that he is not liable to plaintiff because, by performing in a movie stunt, she assumed the risk of being injured. We reject Needham's contention.

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the California Supreme Court abolished the "all-or-nothing" rule of contributory negligence and replaced it with a system of comparative negligence. In so doing, the Supreme Court also abolished the defense of assumption of risk "to the extent that it is merely a variant of the former doctrine of contributory negligence," in which case the defense is "to be subsumed under the general process of assessing liability in proportion to negligence." (Id. at pp. 828-829, 119 Cal.Rptr. 858, 532 P.2d 1226.) In determining to what extent assumption of risk has survived the Li decision, commentators have generally analyzed the defense by subdividing it into three categories: (1) express assumption of risk, ³ (2) unreasonable implied assumption of risk, ⁴ and (3) reasonable implied assumption of risk. (Gonzalez v. Garcia, supra, 75 Cal.App.3d 874, 878, 142 Cal.Rptr. 503.)

It is the third variety of the defense, reasonable implied assumption of risk, which is at issue here. It arises when the plaintiff's reasonable conduct in encountering a known danger raises the inference that he has agreed to relieve the defendant of his duty of care. (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 102, 243 Cal.Rptr. 536.) However, the question of the post-Li viability of reasonable implied assumption risk has not produced a uniform answer. In Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, the court answered that reasonable implied assumption of risk has been abolished by the Supreme Court in the Li decision and no longer constitutes a complete defense (i.e., one which bars a plaintiff's recovery). (Segoviano v. Housing Authority, supra, at pp. 169-175, 191 Cal.Rptr. 578.) In Segoviano, the plaintiff played in a flag football game sponsored by the defendant and was injured when, in violation of the rules, an opposing player, who was also ...