No Employer Liability for Fatal Bora Bora Rendezvous

By editor on November 16, 2022

Occasionally the facts make the case, such as in Musgrove v. Silver, 82 Cal. App.5th 694 (2022). Unfortunately, this tragic case involved an employee’s drowning while visiting Bora Bora, and her parents filed a wrongful death case.

A Hollywood producer took his family and friends (think “Entourage”) to vacation at a Bora Bora resort. The group included his personal assistant and chef who were there to work – sort of.  The executive assistant’s work was to meet with the resort’s concierge to plan the day’s recreational activities. The producer employed a personal chef for his family who accompanied the family on the trip to prepare meals. The producer paid for all expenses of the trip for both of them.

Late one night, after dinner, the chef met up with the executive assistant for a late-night rendezvous. The executive assistant drank half a bottle of wine (paid for by the producer) and snorted a significant amount of cocaine (brought by the chef) just before going for a swim in a lagoon. She drowned and then her parents sued the producer, alleging he was vicariously liable for her death.

A few important facts: First, the executive assistant was invited to go to Bora Bora – it was not a job requirement. However, if she came, she was paid her salary and expected to spend approximately 10 percent of her time coordinating activities. The remainder of the time she was on vacation. The producer paid all of her travel, lodging, and related expenses. The producer did not require anyone to drink at the resort but paid for the alcohol his guests consumed there.

In granting summary judgment, the court first rejected a direct liability theory. The fact that the producer allowed the decedent to drink alcohol or paid for it, was insufficient as a matter of law to establish direct liability. This is because “No social host who furnishes alcoholic beverages to any person may be held legally accountable for …injury to [that] person … resulting from the consumption of those beverages.” Civil Code 1714 subd. (c).

The court next rejected several theories of vicarious liability. First, the plaintiffs argued the producer was vicariously liable for failing to protect his employee. The court explained this theory was also barred by Civil Code 1714, but even if not, the producer’s duty to protect his employee is limited to while they are at work or otherwise in a locale the employee controls. Even though the producer paid for the bungalow where the alcohol and drug use occurred, this was insufficient to impose liability as a matter of law. Second, the plaintiffs argued the producer was liable because the chef’s conduct (furnishing additional alcohol and supplying her cocaine) was within the scope of his employment. Here, the court rejected the argument that an employer is always liable when an employee is on call 24/7. “Public policy would be ill-served by a rule establishing 24-hour employer liability for on-call employees regardless of the nature of the employee’s activities at the time of an accident.”

This is a well-reasoned opinion that contains valuable language for defending employers faced with “off duty” liability lawsuits. In assessing vicarious liability, the court takes pains to explain that the concept of foreseeability as utilized to establish vicarious liability is a narrower and different application of foreseeability than the general principle to establish duty, as a test for negligence. “The various definitions of foreseeability are not interchangeable.” This is because foreseeability for purposes of vicarious liability “views foreseeability of through the prism of the employer’s enterprise and the employee’s duties.” Id. at 714.

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