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The subject of gun safety is not new to these pages. See Safety First (November 2021) and Workplace Gun Safety (August 2022). Essentially, workplace safety is everyone's job. Period. There have been investigations into the workplace shooting of Halyna Hutchins, and according to NBC News, it remains under police investigation. Civil suits were instigated against several, including the movie's producers, which is of interest. However, there are also ancillary legal proceedings worthy of discussion.
The intriguing tragedy in the killing of Halyna Hutchins made the news again last week. The movie will still star Alec Baldwin who was undoubtedly holding the gun that killed Hutchins. TMZ says Ms. Hutchins "was shot and killed by Baldwin"; Reuters says "Halyna Hutchins, who Baldwin shot dead." However, Baldwin swears that he had nothing to do with her death as the gun simply discharged of its own free will. For some reason this morning, I keep replaying a song in my head - John Lennon's 1974, post-Beatles, hit Whatever Gets You Through the Night (Apple Records). It is likely artifact, but one wonders.
The movie will begin production again with Ms. Hutchins' widower as one of its producers. It is said that "to err is human, to forgive is divine." The clarity of Ms. Hutchins' widow is perhaps inspiring in that regard. He is quoted that he has "no interest in engaging in recriminations or attribution of blame" for the killing. He concludes that there is unanimity ("all of us believe") in the conclusion the killing was "a terrible accident," and is focused upon "com(ing) together to pay tribute to Halyna's final work." That is an inspiring sentiment in any perspective.
That news story was characterized in various outlets with surprise. TMZ characterized it as "shocking news." Other outlets such as Reuters also covered it, and seemingly placed more stress on the potentials still on the table "Baldwin and others could still face criminal charges." The potential for workplace safety liability is a near constant in discussions of workers' compensation. But, there was simultaneously another Rust story in the news regarding the killing of Ms. Hutchins, which received seemingly less coverage. It involves a workers' compensation claim that is instructive in its various potential points of discussion.
NBC News reported that the potential for claims from Rust extends beyond Ms. Hutchins, and Director Joel Souza (who was also struck by the allegedly magic bullet, or the banal bullet that came from the magic gun; remember My Cousin Vinny, 20th Century 1992, and the "magic grits" scene?). Mamie Mitchell is seeking damages in a Los Angeles court for a personal injury stemming from the shooting. This is the first interesting point: the case is being pursued in California regarding an allegedly magic misfortune in New Mexico.
The producers of Rust have reportedly asked that this litigation be dismissed arguing that Ms. Mitchell's only recourse if any, should be through the New Mexico workers' compensation system. The producers assert that the killing of Hutchins and "wounding of director Joel Souza were the results of a 'workplace accident.'" In the workers' compensation and litigation arena, this is referred to as "exclusive remedy," and it is one of the pillars of workers' comp. An employee gives up the right to sue in tort for workplace injury, part of the "Grand Bargain."
But, why California? What we refer to as "a" system of workers' compensation is really many "systems" that are each defined by state law. What is or is not covered, burdens of proof, and definition of benefits are all among the details that may differ from state to state. A workers' compensation law such as California's may exercise jurisdiction over accidents in that state, as one might expect, but also over accidents that occur elsewhere if the contract of hire occurred in that state, an injured person lives in that state, and/or various other criteria.
Similarly, a state may exercise jurisdiction over tort or contract claims based upon where a contract was entered, where the parties are, and various other intricacies. In this instance, Ms. Mitchell has selected California and civil court and the producers of Rust disagree. They are essentially asserting exclusive remedy as regards the type of potential liability and argue for New Mexico law. These are not mutually exclusive. They may find themselves in New Mexico or California workers' compensation, or civil court before it is all resolved.
The second point of interest is the NBC description that Ms. Mitchell was not apparently struck by a bullet, nor alleging a fall or other physical trauma in responding to the fear or confusion or fleeing the scene. She was reportedly "standing next to Hutchins." From that proximity, she alleges she "suffered 'serious physical trauma and shock and injury to her nervous system.'”
There are states that allow workers' compensation benefit entitlement only as an adjunct to a physical injury. These are referred to as "physical-mental" states. Others allow compensation for benefits related to emotional injury without physical trauma. These are referred to as "mental mental" states. See The Debate of Mental Mental and PTSD (January 2017). Several are discussed in a Connecticut workers' compensation analysis here. California and New Mexico are each among the states in which "mental mental" claims are potentially recognized.
Similarly, states have varied views on tort liability for emotional injury also. This is referred to as the "impact rule," and can impose a similar requirement for physical injury or at least "impact" in a variety of claims for emotional injury. Florida has such a rule. It is a worthy reminder, as to the foregoing, that following any injury counsel should always remember: (1) that laws differ from state to state and (2) any event may be subject to the laws of multiple states (thus a good attorney can study and select the best state in which her or his client might proceed).
After the civil court in California decides on the exclusive remedy question, the litigation will proceed there or be shifted to a workers' compensation system. There will likely be inquiries and analysis and then selection of some state based on the contacts of this movie with that state (California by contract, or residency; New Mexico by occurrence; perhaps others).
Whether the appropriate law to be applied is California's or New Mexico's, the potential appears to exist for Ms. Mitchell to claim entitlement to workers' compensation benefits. This, of course, will be defined by and controlled by the particular law in the jurisdiction that is elected. It is a fundamental truth about these laws that benefit entitlement and procedure differ from state to state, and even within a state may differ from event to event and from year to year. In short, it is a potentially complex and intriguing puzzle that any workplace injury presents.
By Judge David Langham
Courtesy of Florida Workers' Comp
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About The Author
About The Author
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Judge David Langham
David Langham is the Deputy Chief Judge of Compensation Claims for the Florida Office of Judges of Compensation Claims at the Division of Administrative Hearings. He has been involved in workers’ compensation for over 25 years as an attorney, an adjudicator, and administrator. He has delivered hundreds of professional lectures, published numerous articles on workers’ compensation in a variety of publications, and is a frequent blogger on Florida Workers’ Compensation Adjudication. David is a founding director of the National Association of Workers’ Compensation Judiciary and the Professional Mediation Institute, and is involved in the Southern Association of Workers’ Compensation Administrators (SAWCA) and the International Association of Industrial Accident Boards and Commissions (IAIABC). He is a vocal advocate of leveraging technology and modernizing the dispute resolution processes of workers’ compensation.
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