Stalwart Films LLC v. Susan Bernecker ( 2021 )

THIRD DIVISION
MCFADDEN, C. J.,
DOYLE, P. J., and HODGES, J.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 11, 2021
In the Court of Appeals of Georgia
A20A1896. STALWART FILMS LLC, et al. v. BERNECKER, et al. DO-066
DOYLE, Presiding Judge.
Following a two-week jury trial on claims filed by Susan Bernecker,
individually and as the Executrix of the Estate of John Bernecker, and Hagan
Bernecker, individually, (“plaintiffs”) regarding the death of Susan’s and Hagan’s
son, John Bernecker (“Bernecker”), a verdict was entered in favor of the plaintiffs
against Stalwart Films, LLC (individually, “Stalwart”), Tom Luse, Jeffrey January,
Monty Simons, and TWD Productions VIII, LLC (individually, “TWD8”),
(collectively “defendants”) for negligence that resulted in Bernecker’s death during
a stunt he performed on the set of the television production The Walking Dead.
On appeal, the defendants argue that the trial court erred by denying their
motion for a directed verdict on the grounds that (1) Bernecker was an employee or
borrowed servant for Stalwart, and the claims were barred by the exclusive remedy
provision of the Workers’ Compensation Act1 (“WCA”); (2) even if Bernecker was
an independent contractor, Stalwart was Bernecker’s statutory employer, which status
also barred the claims under the WCA; (3) even if Bernecker was an independent
contractor and Stalwart was not his statutory employer, Stalwart owed no legal duty
to Bernecker; (4) the plaintiffs’ claims against Luse, January, and Simons were barred
because they were Bernecker’s co-employees; (5) alternatively, Luse, January, and
Simons owed no legal duty to Bernecker; (6) TWD8 owed no legal duty to Bernecker;
and (7) Bernecker assumed the risk. For the reasons that follow, we reverse.
When reviewing “the denial of a motion for a directed verdict, we construe the
evidence in the light most favorable to the party opposing the motion,” determining
“whether there is any evidence to support the jury’s verdict” and applying the de novo
standard of review to any questions of law.2 “A directed verdict is authorized only
1
See OCGA § 34-9-1 et seq.
2
(Punctuation omitted.) City of Alpharetta v. Hamby, 352 Ga. App. 511, 512
(835 SE2d 366) (2019), quoting Brown v. Tucker, 337 Ga. App. 704, 720 (8) (788
SE2d 810) (2016); OCGA § 9-11-50 (a).
2
when there is no conflict in the evidence on any material issue and the evidence
introduced, with all reasonable deductions, demands a particular verdict.”3
Viewed in this light, the record shows that Bernecker was performing a high
stunt fall from a balcony on July 12, 2017, during filming of an episode of Season 8
of The Walking Dead. The completed scene was planned to depict the character
played by Austin Amelio shooting the character played by Griffin Freeman in the
back while the two are on a narrow balcony. The balcony had a railing with two
round metal beams, and in the area where Freeman was positioned and from where
Bernecker would perform the fall, there were sheets of corrugated metal — one up
to the top rail and one up past the railing and immediately to Bernecker’s left hand
side. The choreography of the scene called for the following: Amelio would shoot
Freeman in the back, Freeman would slump over the rail, Amelio would grab
Freeman at the belt, and then Amelio would “throw” or pitch Freeman’s slumping
body over a balcony rail.
Bernecker’s performance consisted of dropping his prop assault rifle, going
head first over the metal balcony rail beside the metal, rotating, and landing on his
3
(Punctuation omitted.) Marwede v. EQR/Lincoln Ltd. Partnership, 284 Ga.
App. 404, 407 (2) (643 SE2d 766) (2007), quoting H. J. Russell & Co. v. Jones, 250
Ga. App. 28, 28-29 (550 SE2d 450) (2001).
3
back approximately 21 feet down into a “catcher system,” which consisted of a 10
feet by 10 feet area of cardboard boxes4 with 2 “port-a-pits” atop the boxes. The
balcony, although it was only part of a film set and not a true building, had a
commercial height railing, which was more difficult to clear without using a step
called an “apple box.” Although Simons, who was the stunt coordinator, served as a
spotter at the far end of the catcher system, no other spotters were used on other sides
of the catcher nor did the boxes extend all the way to the back wall behind the
balcony.
On his first take of the stunt, Bernecker was fatally injured when his head
struck the unprotected concrete between the catcher system and the wall under the
balcony. Although he was placed on life support, Bernecker never regained
consciousness and eventually died.
The plaintiffs filed claims arising from Bernecker’s injuries and death, and the
defendants filed multiple motions for summary judgment. In three separate orders, the
trial court denied the defendants’ motions for summary judgment on the issues of the
4
The plaintiffs’ expert testified that cardboard boxes are industry standard for
catching performers during a fall and are layered on top of each other if necessary.
4
WCA exclusive remedy provision; whether AMC and TWD8 had a legal duty to
Bernecker; and whether Bernecker assumed the risk.5
At trial, the plaintiffs’ accident reconstruction and biomechanical expert
hypothesized that Bernecker became entangled in the railing after Amelio
inadvertently touched him in the back with his prop handgun, despite Amelio being
warned specifically not to touch Bernecker during the stunt. The expert opined that
based on the video of the fall, Bernecker’s intentional stunt was interrupted by
Amelio’s inadvertent touching, turning the stunt into an unintentional fall, which
Bernecker either reflexively or intentionally attempted to control by grabbing onto
the rail, resulting in a pendulum swing propelling him to land headfirst past the
catcher system onto the unprotected area of concrete.
The plaintiffs argue that the Injury and Illness Prevention Program (“IIPP”),
which was prepared by TWD8, created a duty as to TWD8, Stalwart, Luse, January,
and Simon to supervise Bernecker’s safety. According to the IIPP, AMC or TWD8
developed the IIPP to provide Stalwart with safety protocol to be implemented on the
5
The defendants filed a consolidated motion for reconsideration of the trial
court’s orders denying the motions for summary judgment, which motion for
reconsideration the trial court denied. Thereafter, the defendants filed a request for
a certificate of immediate review, which the trial court denied the following day,
finding that the defendants had delayed filing the request until the eve of trial.
5
set. The plaintiffs argued that Stalwart failed to have a production safety
representative on set in order to fulfill requirements of the IIPP.
Luse was the unit production manager on Season 8 of the show. Under the
IIPP, a unit production manager is responsible for the effective administration and
implementation of the IIPP and was responsible for making sure that the first assistant
director and stunt coordinator met their responsibilities under the IIPP. Luse testified
that although he shared responsibilities with others, he was in charge of the episode
in question, and January reported to him. Luse also testified that while he was
responsible for overall safety, he was not an expert in stunts and relied on Simons’s
knowledge and experience in determining what was necessary to perform the stunt
safely.
January was the first assistant director on the show, and he was responsible for
educating crew on safety requirements and conducting safety meetings and was
supposed to discuss the safety of stunts with Luse and Simons. January did not
question whether spotters or additional padding were necessary for the stunt, despite
being in charge of safety according to the IIPP and being familiar with industry safety
bulletins that included information on the “use of sufficient numbers of spotters,”
inspections of the fall area, and “guidelines for safe use of” catch systems because he
6
relied on Simons’s expertise. January disputed that he had control over Simons and
testified that they worked “in tandem.”
Simons was the stunt coordinator for the show, which position was
“[r]esponsible for the safe performance of stunts and supervision of all persons
involved” per the IIPP. He testified that Luse was his boss, but January was more of
a “co-safety representative” to whom Simons would report on occasion.
The plaintiffs’ expert on movie stunts and coordination testified that the stunt
coordinator has to foresee all the things that may go wrong with a stunt and protect
against them, and the stunt coordinator works closely with the first assistant director
on managing stunt safety. The expert testified that although Bernecker may have
asked for the catcher to be moved out and away from the wall, he was asking for his
target to be moved, which is where he was attempting to land; however, the stunt
coordinator was responsible for foreseeing how the stunt could go wrong if Bernecker
did not land where he was supposed to, and he should have added more boxes
between the catcher and the back wall to guard against that possibility.
The defendants moved for a directed verdict at the end of the plaintiffs’ case
and again prior to jury deliberation, incorporating their arguments from summary
judgment and arguing that the plaintiffs’ claims (1) were barred by the WCA,
7
including that even if Bernecker was found to be an independent contractor, he was
a statutory employee of TWD8 under OCGA § 34-9-11, (2) failed because the
defendants owed Bernecker no duty of care, or (3) were barred because Bernecker
assumed the risk. The trial court denied the motions, finding that sufficient evidence
was presented to create questions of fact. The defendants renewed their motions at the
close of their own case.
The jury returned a verdict in favor of the plaintiffs, specifically finding that
“[a]s to John Bernecker’s working status on the date of the stunt, . . . Bernecker was
an independent contractor at Stalwart . . .” as opposed to an employee. The jury found
that all but two of the defendants were negligent, and their conduct was the proximate
cause of Bernecker’s death.6 The jury found that Bernecker was only six percent at
fault for his own injuries, apportioned the remaining ninety-four percent of fault to
all but two of the defendants, and awarded the plaintiffs $8.6 million in damages.7
Thereafter, the trial court entered the verdict and final judgment, reduced the total
6
The jury found that AMC Network, Inc., and Amelio were not negligent.
Claims against various other defendants were dismissed without prejudice prior to
trial.
7
The jury did not award punitive damages.
8
award to $8,084,000 for the percentage of damage assigned to Bernecker by the jury.
This appeal followed.
1. The defendants argue that the trial court erred by denying their motions for
a directed verdict because the plaintiffs’ claims were barred by the exclusive remedy
provision of the WCA.
“Under OCGA § 34-9-11 (a), the WCA is the exclusive remedy for injuries by
accident arising out of and in the course of employment.”8
Specifically, the defendants contend that Bernecker was an employee of
Stalwart based on the parties’ contract or Bernecker’s membership in the Screen
Actor’s Guild (“SAG”) and SAG’s applicable collective-bargaining agreement
documents.9 The plaintiffs contend that there was a question of fact as to whether
Bernecker or some unknown individual signed the “Stunt Performer’s Daily
8
(Punctuation omitted.) Sturgess v. OA Logistics Svcs., 336 Ga. App. 134, 135
(1) (784 SE2d 432) (2016).
9
To the extent that the defendants argue that the trial court should have
admitted certain testimony regarding the SAG collective bargaining agreement, we
do not review this improper expansion of their enumerations of error on appeal. See
Wright v. Dept. of Natural Resources, 254 Ga. App. 450, 454 (562 SE2d 515) (2002)
(“An appellant cannot use an appellate brief to expand his or her enumeration of
errors by arguing the incorrectness of a trial court’s ruling not mentioned in the
enumeration.”) (punctuation omitted).
9
Contract,” and therefore, the trial court properly denied the motions for directed
verdict.
Pretermitting whether the written contract was authentic,10 the undisputed
evidence presented at trial established that Bernecker was an employee of Stalwart
when he performed the stunt on the day in question.
[U]nder longstanding Georgia law, the true test to be applied in
determining whether the relationship of the parties under a contract for
the performance of labor is that of employer and servant, or employer
and independent contractor, lies in whether the contract gives, or the
employer assumes, the right to control the time, manner and method of
executing the work, as distinguished from the right merely to require
certain definite results in conformity to the contract.11
10
The document is not ambiguous. It refers to Stalwart as the “employer-for-
hire,” and in the attached “Schedule A” it states in paragraph “1. Employment: This
Agreement covers the employment of the above named Stunt Performer by [Stalwart].
. . .” To the extent that the plaintiffs argued that it was ambiguous because there was
no signature for Bernecker’s loan-out personal corporation, Bernecker’s signature
appears next to “performer” and would create a clear employer-employee relationship
rather than that of a borrowed servant normally created under industry contracts. See,
e.g., Angelotti v. The Walt Disney Co., 192 Cal. App. 4th 1394, 1406 (2) (b) (121
CalRptr3d 863) (2011) (“the typical use of a loan-out company in the hiring of talent
in the entertainment industry does not mitigate the right of control or the other factors
indicating the existence of an employment relationship”).
11
(Punctuation omitted.) Estes v. G&W Carriers 354 Ga. App. 156, 157 (2)
(840 SE2d 486) (2020) , citing Golosh v. Cherokee Cab Co., 226 Ga. 636, 637 (176
SE2d 925) (1970). See also OCGA § 34-9-2 (e).
10
“The right to control the time means the employer has assumed the right to
control the person’s actual hours of work. The right to control the manner and method
means the employer has assumed the right to tell the person how to perform all details
of the job, including the tools he should use and the procedures he should follow.”12
In this case, although Bernecker could request minor changes to assist him in
performing the stunt, such as a higher apple box lift or a larger catcher system, or he
could refuse to perform the stunt if he felt unsafe, ultimately Stalwart retained the
right to control the time, manner, and method of the work Bernecker performed.13 The
stunt was choreographed as part of a larger scene, and Bernecker was directed as to
how exactly he should appear to act during the stunt. His slightest movement or body
placement was subject to the direction of Stalwart. Moreover, Bernecker had a
specific call time on a specific day, he was expected to perform when the director
called for the scene, and he did not have authority to change the time when he could
perform.
12
(Punctuation omitted.) Boatright v. Old Dominion Ins. Co., 304 Ga. App.
119, 120 (1) (695 SE2d 408) (2010), quoting Palma v. Ga. Farm Bureau Ins. Co.,
270 Ga. App. 333, 336 (606 SE2d 341) (2004).
13
See Estes, 354 Ga. App. at 157-159 (2).
11
The plaintiffs heavily rely on the fact that Stalwart issued Bernecker an Internal
Revenue Service (“IRS”) Form 1099 and did not withhold taxes as evidence of a
factual dispute as to Bernecker’s employment status; however, this Court previously
has held that “the fact that [an employer] issued its workers [IRS] Form 1099 (rather
than Form W-2) and did not withhold taxes from their paychecks or provide insurance
for the workers does not create a jury question on [Bernecker’s] status as an
employee.”14
The plaintiffs also rely on comparisons to the agreements between Stalwart and
its other employees as evidence that Bernecker was not an employee. But the
existence and contents of those agreements, which involved individuals performing
throughout the season or every week, do not change the nature of the relationship
between Bernecker and Stalwart based on the undisputed evidence that Stalwart
controlled the time, method, and manner of Bernecker’s work.15 To the extent that
Bernecker had a personal loan-out company, which is normal in the industry,16 the
14
(Punctuation omitted.) Id. at 159 (2), quoting Boatright, 304 Ga. App. at 121
(1).
15
See Estes, 354 Ga. App. at 158-159 (2).
16
See, e.g., Angelotti, 192 Cal. App. 4th at 1406 (2) (b).
12
existence of a contract between the loan-out company and Stalwart would only evince
that Bernecker was a borrowed servant of Stalwart’s, and it would not change the
ultimate conclusion that a directed verdict was demanded as to this issue.17 The result
of either status — that Bernecker was a direct employee of Stalwart or that he was a
borrowed servant of Stalwart — barred the plaintiffs’ tort claims against Stalwart.
Accordingly, the trial court erred by denying the motion for directed verdict on the
basis that the WCA barred the plaintiffs’ claims against Stalwart.
2. Based on our holding in Division 1 that Bernecker was an employee or
borrowed servant of Stalwart at the time of his injuries, the trial court also erred by
failing to grant a directed verdict to Luse, January, and Simons as co-employees of
Bernecker.18
17
See Bexley v. Southwire Co., 168 Ga. App. 431, 432 (1) (309 SE2d 379)
(1983) (“In order for an employee to be a borrowed employee, the evidence must
show that (1) the special master had complete control and direction of the servant for
the occasion; (2) the general master had no such control, and (3) the special master
had the exclusive right to discharge the servant.”) (punctuation omitted), citing Six
Flags Over Ga. v. Hill, 247 Ga. 375, 377 (276 SE2d 572) (1981).
18
See OCGA § 34-9-11 (a). See, e.g., Sprowson v. Villalobos, 355 Ga. App.
279, 281 (841 SE2d 453) (2020) (explaining that borrowed servants were employees
of the same employer); Dickey v. Harden, 202 Ga. App. 645, 645-646 (414 SE2d 924)
(1992) (explaining that employees of same employer are immune from tort liability
to their co-workers under the WCA).
13
3. Finally, there simply is no evidence that TWD8 breached a duty to
Bernecker, even if TWD8 admitted in its answer that it was generally responsible for
“funding and production” of the series. To the extent that the plaintiffs argued that
the IIPP created a duty for themselves as to Bernecker by providing the IIPP to
Stalwart, the plaintiffs wholly failed to establish that the mere existence of the IIPP
created any specific duty for TWD8 as to Bernecker, that TWD8 breached that duty,
or that such a breach was the proximate cause of Bernecker’s injuries.19
Judgment reversed. McFadden, C. J., and Hodges, J., concur.
19
See, e.g., Angelotti, 192 Cal. App. 4th at 1407-1408 (3) (b) (evidence failed
to establish that the general contractor production company owed a duty to an
employee of a subcontractor). See also Reed v. Carolina Cas. Ins. Co., 327 Ga. App.
130, 132 (2) (762 SE2d 90) (2014) (explaining that a plaintiff must prove that the
defendant’s negligence was both the “cause in fact” and the “proximate cause” of the
injury) (punctuation omitted); Lawson v. Entech Enterprises, Inc., 294 Ga. App. 305,
309-310 (1) (669 SE2d 211) (2008) (“what duty a defendant owes is a question of
legal policy to be decided as an issue of law” and because the plaintiff has not
established that the defendant “owed the decedent a contractual duty or one
established by law or statute, [the] action for negligence cannot be maintained”)
(punctuation and citations omitted). To the extent that the plaintiffs argued that
TWD8 was a producer along with Stalwart as an alter ego of Bernecker’s employer,
any claims against it would be barred under the WCA. See Beck v. Flint Constr. Co.,
154 Ga. App. 490, 492-493 (268 SE2d 739) (1980).
14