46 Cal.App.5th 469
Cal. Ct. App.2020Background
- National Geographic hired Asylum Entertainment to film Big Fish Texas; two Asylum employees (producer, cameraman) boarded the M/V Black Jack IV as observers.
- Eddy McHenry (plaintiff) was hired by vessel owner Buddy Guindon as an independent contractor crewman and signed an appearance release with Asylum.
- Aboard the voyage McHenry severely cut and infected his hands; Asylum personnel filmed the injury and at times asked crew to repeat or explain tasks for the camera.
- McHenry asked Asylum employees for help; the vessel's captain (Hans) decided to rendezvous with Buddy’s faster boat (Hullraiser). Asylum arranged for an EMT and two employees to be aboard Hullraiser; McHenry was transferred and later lost three fingers to infection.
- McHenry sued the Guindons and Asylum under the Jones Act and maritime tort theories; after settling with the Guindons, the trial court granted Asylum summary judgment, finding McHenry was not Asylum’s employee/borrowed servant and Asylum owed no duty to rescue. The Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Asylum was McHenry's employer under the Jones Act (including "borrowed servant") | McHenry argued Asylum "borrowed" crew by filming them, directing repeats/explanations, and shaping cast for TV, making Asylum his employer | Asylum contended it only observed and occasionally requested repeats/explanations; it had no authoritative control over crew or vessel operations | Held: No. Control (the key factor) was retained by the vessel/captain; Asylum was not McHenry's employer or borrowed servant, so Jones Act claim fails |
| Whether Asylum had a special-relationship duty to rescue under maritime law | McHenry argued Asylum's filming relationship, releases, and commercial benefit from his injury created a duty to assist | Asylum argued no common-law, contractual, or statutory duty arose from an appearance release or filming; crew/vessel remained in command | Held: No special relationship; appearance release imposed no rescue duty, so no duty-to-rescue as a matter of law |
| Whether Asylum, having voluntarily attempted rescue, is liable for grossly negligent rescue or for placing McHenry in a worse position | McHenry alleged Asylum promised helicopter evacuation, participated in evacuation decisions, hired an EMT (who lacked antibiotics), and delayed departure while fitting the EMT with mic/release | Asylum argued any promises were non-binding, the captain made evacuation decisions, EMT presence did not worsen McHenry's position, and Hullraiser did not wait for Asylum | Held: No triable issue that Asylum's actions were grossly negligent, worsened McHenry's condition, or caused detrimental reliance; volunteer-rescuer liability not shown |
| Whether Asylum "took charge" of a "helpless" person under Restatement §324 and thus owed heightened care | McHenry claimed Asylum assumed responsibility by arranging medical pickup and making assurances | Asylum argued it never took physical custody or overall responsibility; captains retained control; McHenry was able to request evacuation (not helpless) | Held: No. No evidence Asylum took charge or that McHenry was legally "helpless," so §324 claim fails |
Key Cases Cited
- Chandris, Inc. v. Latsis, 515 U.S. 347 (U.S. 1995) (defines who is a "seaman" and scope of Jones Act employer liability)
- Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783 (U.S. 1949) (Jones Act remedy traditionally available only against a seaman's employer)
- Linstead v. Chesapeake & O.R. Co., 276 U.S. 28 (U.S. 1928) (control test for determining borrowed servant)
- Societa Per Azioni Navigazione Italia v. City of L.A., 31 Cal.3d 446 (Cal. 1982) (discusses borrowed-servant factors and maritime chain-of-command concerns)
- Hall v. Diamond M Co., 732 F.2d 1246 (5th Cir. 1984) (lists factors relevant to borrowed servant analysis)
- Thames Shipyard & Repair Co. v. United States, 350 F.3d 247 (1st Cir. 2003) (warns against imposing duties on ship passengers that would disrupt captain's authority)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (Cal. 2001) (summary judgment standard—no triable issue when evidence cannot support a verdict for the opponent)
- Williams v. State of California, 34 Cal.3d 18 (Cal. 1983) (general rule that there is no affirmative duty to rescue absent special relationship)