This is a sad story about an accidental drowning in Bora Bora, French Polynesia.
JENNIFER ANISTON WEDDING CELEBRATION
Carmel Musgrove traveled to the Four Seasons Resort on a private island on Bora Bora where she was one of fourteen people whom Hollywood producer Joel Silver invited to accompany him in attending actress Jennifer Aniston’s wedding celebration. Musgrove stayed in her own over-water bungalow and participated in various activities including fishing, volleyball and …drinking wine. Silver covered all of the groups’ trip expenses on the trip including alcohol.
On the evening in question, a little after 10 p.m. Musgrove met up with Martin Herold, another member of Silver’s entourage. Musgrove and Herold drank wine and she allegedly ingested his cocaine. At some point after departing from Herold, Musgrove climbed down the ladder from her bungalow’s platform into the dark waters of the lagoon for a nighttime dip. She did not show up at breakfast or lunch the next day. Her blood alcohol level was 0.20 – twice the legal limit. She also had a “significant” amount of cocaine in her liver.
RELATIONSHIP OF THE PARTIES
Herold was Silver’s personal chef. He had no fixed working hours but prepared the groups lunches and dinners.
Musgrove was Silver’s executive assistant. While Silver paid for all of his group’s food and beverages, he did not encourage the use of alcohol nor did he monitor anyone’s consumption. Musgrove and Herold knew each other from prior gatherings.
THE FAMILY SUES
Musgrove’s parents sued Silver for the wrongful death of their daughter alleging he had exposed their daughter to an unreasonable risk of harm by furnishing her an excessive amount of alcohol and drugs. They alleged that Silver was directly liable for Musgrove’s death because he had put her in a vulnerable state on the night of her death. Also, that Silver was vicariously liable for the negligence of Herold because Herold was “acting in the course and scope of his employment.” That became the main issue in this case.
If Herold was acting the course and scope of his work in his dealings with Musgrove, and if he was negligent, Silver would be vicariously liable as his employer.
IN THE COURSE AND SCOPE OF HIS EMPLOYMENT?
The Second District Court of Appeal in a lengthy opinion (don’t worry we’ll keep it brief) analyzed whether Silver could be vicariously liable for Herold’s “injury-producing activities,” assuming for the case he was negligent. The court determined the alcohol and cocaine activities were wholly unrelated to Herold’s work duties as Silver’s chef. Nor did Silver have any knowledge of Herold’s and Musgrove’s evening interaction.
As to whether Silver was directly liable for Musgrove’s death, the court of appeal ruled against her parents determining that Silver did not furnish drugs or alcohol, nor did he have any knowledge of the night’s events. Furthermore, under Civil Code 1714, a social host who furnishes alcoholic beverages to someone is not legally responsible for injury to that person resulting from the consumption of the alcohol. The so-called social host immunity code.
No liability for Silver. A sad and unfortunate story.
Jim Porter is an attorney in the process of retiring with Porter Simon licensed in California, with offices in Truckee and Tahoe City, California, and Reno, Nevada. These are Jim’s personal opinions. Jim’s practice areas included: real estate, development, construction, business, HOA’s, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at email@example.com or www.portersimon.com. Like us on Facebook. ©2022