Murder on the “Rust” Express

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As facts continue to come to light about Halyna Hutchins’s death, there is one thing that is known, Hutchins was fatally shot with a loaded prop gun while on the set of the film, “Rust.”  As the wielder of the weapon, Alec Baldwin has been implicated in her death.  The police have begun to investigate the event, and the world is wondering what the legal impacts of the incident will be on Baldwin, the producers, and the film industry itself.

“In persons grafted in a serious trust,

Negligence is a crime. ” ~ William Shakespeare

In the wake of her death, Ms.  Hutchins’s family may choose to pursue a civil action for negligence^[1] against Baldwin and the film studio.  It is well established in tort law that the elements of negligence are duty, breach of duty, cause in fact, proximate cause, and damages.  To bring a successful suit, Ms. Hutchins’s family must prove that there was a duty owed to Ms. Hutchins by Baldwin and the producers, that the duty was breached, and that the accidental discharge of a firearm was foreseeable and caused her death.

Duty refers to a legal duty to exercise reasonable care under the circumstances, but what exactly is reasonable when dealing with weapons on a film set?  Generally, industry standards and customs are considered when defining what is reasonable.

A list of recommended safety guidelines for film sets was released by the Industry Wide Labor-Management Safety Committee, including the following:

“BLANKS CAN KILL.  TREAT ALL FIREARMS AS THOUGH THEY ARE LOADED.  ‘LIVE AMMUNITION’ IS NEVER TO BE USED NOR BROUGHT ONTO ANY STUDIO LOT OR STAGE. ”

When using real guns on movie sets, prop masters generally use blanks, a cartridge with no bullet, to simulate the effects of a live weapon, but there is some ambiguity within the film industry regarding safety standards for weapons on film sets.  Larry Zanoff, an experienced armorer, has stated that only blanks are used on film sets, and if the gun was loaded with live ammunition, it would be a violation of set safety standards, and “[t]here’s no place for live ammunition on a television or movie set.”  However, these rules are “not binding laws or regulations,” and the government has generally left the decision about whether to use blanks or live ammunition to the discretion of the film industry.  

When this industry standard is considered, it may appear to the court that reasonable care was not exercised by those on the set of “Rust,” including the armorer and Baldwin himself, who failed to treat the firearm as though it was loaded.

For the second element, breach of duty, the legal doctrine of res ipsa loquitur, or “the fact speaks for itself” gives direction in this case.  Res ipsa loquitur can be used to establish that a duty has been breached, or to prove negligence as a whole.  This doctrine has three requirements: (1) that the defendant was in exclusive control over the instrumentality that caused the harm, (2) that the event that caused the harm is not something that ordinarily happens without negligence, and (3) the plaintiff did not contribute to the cause.

Although there were several people in control of the gun on the “Rust” set, they were all employees of the film studio, thus putting the film studio in exclusive control over the gun.  Therefore, the question for the court is whether a fatal employee shooting on the set of a film is something that generally happens without negligence.  If the answer is yes, then by using the doctrine of res ipsa loquitur, the film studio could be held liable for breaching its duty of care to Ms. Hutchins because this legal doctrine allows courts to draw the inference that the defendant was negligent.  For Mr. Baldwin himself, the court would have to decide whether “exclusive control” means that he was the only one in control of the weapon at the time of the accident, or if the fact that other people handled the weaponry means that he was not in “exclusive control.”

Regarding the third element, courts have generally held that the act is a cause in fact of the harm if it was a substantial factor in bringing about the harm.  To make this determination, the courts have adopted a “but-for” test–but for the defendant’s negligence, the plaintiff wouldn’t have suffered the injury.  In this case, the analysis would be as follows: but-for a gun loaded with live ammunition on a film set, the cinematographer would not have been killed when the gun was fired.

The final element, proximate cause, exists to hold defendants liable for their negligence, but only to the extent that the disaster was foreseeable.  This is best summarized by Justice Cardozo, addressing the “wrong” of negligence, in Palsgraf v.  Long Island R. R.  Co., “[w]rong is defined in terms of the natural or probable, at least when unintentional.”  This begs the question, is it foreseeable that a gun could injure someone?  When an actor is handed a real gun that he understands to be unloaded, is it foreseeable that it could kill someone when fired?  As an armorer, is it foreseeable that, if a prop gun is loaded, it may be mistaken for an unloaded weapon?  If the answer is yes, and a court decides that all the previously mentioned elements of negligence have been met, the film studio and the producers may be held vicariously liable through respondeat superior.

“Respondeat superior” literally means “let the master answer.”

The legal doctrine of respondeat superior holds employers liable for the negligent actions of their employees while acting within the scope of their employment, and it imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee.  This means that, if a court finds that an employee of the film studio was negligent at any point–in failing to follow industry safety standards, or loading a prop gun with live ammunition, or handing that gun to an actor, or failing to ensure that the prop gun was not loaded–then the liability for those negligent acts can be passed on to the film studio and potentially the producers of the film.  This places Baldwin in a unique situation, as he is both a possible perpetrator of the alleged negligence and a producer of the film.  This means that, if a court finds that he became the employer of the film’s crew within his capacity as a producer of the film, he is potentially liable for the actions of every employee on the set of the film including his own actions and that of the armorer (another possible perpetrator).

According to her attorney, the armorer on this set, Hannah Gutierrez-Reed, “loaded the gun Baldwin used on the set of ‘Rust’ from a box of ammo that should have been only dummy rounds,” but Ms. Gutierrez-Reed suggested that the inclusion of live rounds was an act of sabotage done intentionally by a “disgruntled crew member” and not an act of negligence on her part.  Ms. Gutierrez-Reed has based this allegation of sabotage on the fact that there should not have been live rounds in the box of blanks, but she has not supported this theory with any evidence thus far.  Nevertheless, if evidence of sabotage were to be produced, the film studio could be held liable for an intentional tort.  To hold the studio liable, a court would have to be convinced that the acts of sabotage were undertaken by an employee acting within the scope of his or her employment, an argument that could be difficult to prove because a significant deviation from the instructions of an employer are generally not within the scope of employment.

To insulate themselves from liability, the film studio and Baldwin could attempt to circumvent respondeat superior by arguing that the people who worked on the film were not employees, but contractors.  When determining whether a person is an employee, courts consider factors such as: employment taxes, benefits, periodic salary payments (as opposed to a lump sum), and the extent to which the “employer” has the right to control the physical details of the work^[2]. Without access to the employment contracts, it is difficult to predict how a court would rule, but the amount of control asserted over the workers on a film set would make it more likely that they were employees, and not contractors.

“She’s the most inexperienced armorer I had ever worked with”

The film studio and Baldwin could be held liable for Ms. Hutchins’s death separately based on the negligent hiring and retention of the armorer working on the film.  The U.S. Department of Justice has stated that “‘[n]egligent retention’ can be charged when an employer knew, or should have known, that an employee was unqualified to be in the job position they held when the action in question occurred.” “Rust” is Ms. Gutierrez’s second film, and she was involved in multiple incidents on her first film set, “The Old Way.”  While on the set of “The Old Way,” she received criticism from multiple crew members, including Nicholas Cage and the key grip, Stu Brumbaugh, regarding the reckless nature of her weapons handling.  Brumbaugh cited one specific incident to CNN, in which he said that,

“[Gutierrez] was talking to the stunt coordinator, and she just fired off a round, it sounded [like she fired] at the ground, and that’s when [Nicholas Cage] really laid into her.  That’s when I said she needs to be let go, she’s the most inexperienced armorer I had ever worked with.  I have no idea why she wasn’t let go.”

Another crew member told CNN that, while on the set of “The Old Way,” Gutierrez “walked out onto the set with live rounds with no announcement whatsoever to the cast and crew by her,” and that “[s]he didn’t carry the firearms safely.”  Given these criticisms, a court may be more willing to hold that the film studio negligently hired and retained Gutierrez in her role as armorer on “Rust,” following the safety incidents on the set of “The Old World.”

Is Alec Baldwin guilty of criminal homicide?

Homicide is when a human causes the death of another person, and courts have extended the definition of criminal homicide to include involuntary manslaughter where one negligently caused the death of another.  The law of New Mexico, where the “Rust” set was located, provides that involuntary manslaughter occurs when a human being is killed,“[i]n the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection.”

In New Mexico, to convict a person of involuntary manslaughter, the State must show at least criminal negligence, and courts only attach felony liability if the state can satisfy the requisite mens rea. The requisite mens rea, or mental state, to prove criminal negligence is satisfied when the State proves that the defendant was subjectively aware of the risk posed by his actions, and that “the defendant act[ed] with willful disregard of the rights or safety of others and in a manner which endanger[ed] any person or property.”  In Baldwin’s case, a court would likely consider whether the actor was aware that the gun that he was handling was dangerous, regardless of whether it was loaded with a blank or live ammunition, and whether he failed to take the proper safety precautions before shooting the gun.  In considering this, a court would likely look to the safety guidelines given by the Industry Wide Labor-Management Safety Committee (referenced above), which includes a warning that “blanks can kill.  Treat all firearms as though they are loaded.”

Baldwin has stated that he mistakenly assumed that the gun was not loaded. However, a mistake of fact in criminal law is only applicable when it negates the mens rea element of a crime, and mistake does not negate negligence.

This situation is tragic.  A talented woman has died, others were injured, and Alec Baldwin is potentially liable for negligence and guilty of criminal homicide.  This tragedy will likely impact not only safety standards on film sets, but also the general public’s attitude towards negligence and the serious impacts that it can have in the workplace, particularly when employees are handling firearms.

^[1] As the author was working on this article, Baldwin and others involved on the set of “Rust” were sued, by Halayna Hutchins’s estate and her husband, for wrongful death as a result of the on-set shooting.

^[2] Prosser, Wade, Schwartz, Kelly, and Partlett’s Torts, Cases and Materials,14th Ed. (p. 760-767).