California Employment Law Letter NEGLIGENCE is subject to dispute, but the lawsuit filed by the Carter wv, neg, nhr, ic, el family is based on the following loosely alleged facts. Sloan directed Knight to leave the base camp, and the Ice Cube, Dr. Dre, NBC two agreed to meet later in the day at another location, Universal skirt liability for Tam’s Burgers. Upcoming scenes were scheduled to take place at Tam’s Burgers. Sloan, somewhat embarrassed by Straight Outta Compton death the encounter at base camp and his perceived inability to keep Knight at bay, hoped to resolve tensions with by Janine Braxton, Esq. Knight, who felt he was entitled to profits from both the Carothers DiSante & Freudenberger LLP movie and Dr. Dre’s sale of Beats to Apple. Terry Carter was killed by well-known record producer To that end, Sloan invited Terry Carter, a local com- Marion “Suge” Knight during production of the film Straight munity member who was well respected by both Sloan Outta Compton. Knight had a dispute with Cle “Bone” Sloan, and Knight, to Tam’s Burgers. Carter was regarded as a who worked for one of the film’s producers, NBC Universal “unifier.” The objective was to improve the producers’ LLC. Carter was asked to mediate the dispute. After the parties’ relationship with Knight and resolve issues related to meeting, Knight ran over Carter with his truck, inflicting fatal the movie. However, the meeting went terribly wrong. injuries. Carter’s wife and children sued NBC Universal and Although the details are unclear, after the meeting be- other entities involved in the film’s production (collectively, the tween the men, Knight fatally ran over Carter with his producers) for wrongful death/negligence and for negligently truck as he left the scene. hiring Sloan. The trial court dismissed the case, finding NBC Universal owed no duty to Carter and it was not vicariously The producers argued that the Carter family’s initial liable for Sloan’s actions. The Carter family appealed. complaint and their later amendments to the complaint didn’t include enough facts to support their claims of Background wrongful death and negligent hiring. Despite the fam- ily’s attempts to change their arguments to show that Well-known rappers Ice Cube and Dr. Dre, whose Carter’s death was foreseeable and otherwise impute real names are O’Shea Jackson and Andre Young, are re- liability to the producers, the trial court rejected their garded as two of hip-hop’s founding members from the complaint. The Carter family appealed. ’80s and early ’90s. They were part of the Compton rap group N.W.A. and were later involved in establishing Death Row Records. Since then, the two rappers have Court examines Rowland factors found success in other industries, including acting, and On appeal, the court affirmed the trial court’s ruling Dr. Dre sold his “Beats” electronics brand to Apple for and determined that the Carters’ wrongful death claim $3 billion in 2015. failed because it didn’t meet the Rowland factors or in- Ice Cube and Dr. Dre landed a movie deal with clude evidence sufficient to prove negligent hiring since NBC Universal to chronicle the rise and fall of their the harm to Carter (a third party) was not foreseeable. seminal rap group and their role in creating Death Row The court of appeal opined that Civil Code Section 1714, Records. To contribute to the authenticity of the film which provides that a party is responsible not only for and accurately reflect their Compton community, the the result of his willful actions but also for an injury to film included local gang members and featured the another due to his lack of ordinary care or skill, didn’t character of “Suge” Knight, one of the real-life founders extend to the producers under the facts of the case. The of Death Row Records. At the time of filming, Knight “duty of care” is not without limitation, and courts gen- was known to be violent and had been the subject erally weigh public-policy concerns to determine how of a restraining order obtained by Dr. Dre. He was far the duty extends. not invited to be in the film, nor was he allowed on In the 1968 case Rowland v. Christian, the California the set. Supreme Court outlined the criteria for determining a The film was shot at various locations in Compton, party’s duty of care to others. The Rowland criteria are but the cast and crew maintained a base camp at Comp- considered the “gold standard” in California. Under ton City Yard. The film’s producers, including NBC Uni- Rowland, courts consider: versal, hired Sloan to serve as a technical adviser. His • The foreseeability of harm to the plaintiff; primary duties were to recruit gang members to appear in the film and provide security for on-location shooting • The degree of certainty that the plaintiff suffered in gang-controlled neighborhoods. He was also directed an injury; to keep Knight from interrupting filming and away • The closeness of the connection between the defen- from Compton City Yard. dant’s conduct and the injury suffered; During filming, Knight arrived at the base camp, • The moral blame attached to the defendant’s and Sloan told him to leave. Exactly what transpired next conduct; August 13, 2018 5 California Employment Law Letter • The policy of preventing future harm; threat of violence, you should take appropriate reason- • The extent of the burden to the defendant and the able measures to protect yourself, your employees, and consequences to the community of imposing a duty any third parties who enter the workplace. It should be to use care; and noted that restraining orders are often available against third parties who pose credible threats of workplace • The availability, cost, and prevalence of insurance violence. available for the risks involved. The author can be reached at Carothers DiSante & Freud- Of those factors, foreseeability and the burden to the de- enberger LLP in Sacramento, [email protected]. ✤, fendant are the most important. Foreseeability. An injury is reasonably foreseeable only if its occurrence is likely enough in modern daily life that reasonable people would guard against it. To as- sess this factor, the court of appeal focused on whether the producers should have reasonably foreseen that Knight (a third party) would turn what was supposed to be an off-site meeting aimed at resolving differences into a deadly attack against another third party (Carter). Be- cause Sloan asked Carter to attend the meeting as a me- diator and Carter didn’t have any previously known dis- pute with Knight, the court of appeal found that Sloan (and the producers) couldn’t reasonably foresee that the meeting would result in Carter’s death. Burden. In the context of wrongful death and negli- gence, a defendant’s burden to prevent harm is based on the extent to which the harm was foreseeable. A sliding scale is used, meaning the more foreseeable the harm is, the greater the burden to prevent it is. The Carter fam- ily contended that the producers should have hired se- curity guards for the meeting between Knight, Sloan, and Carter at Tam’s Burgers. In California, however, hiring security guards is considered a high burden on employers, and previous incidents are typically required to warrant the need for security. The court of appeal re- jected that argument because Sloan had invited Knight to Tam’s Burgers, and the presence of security guards wouldn’t have prevented the meeting from going for- ward or the unanticipated violence that occurred when Knight was leaving the meeting. The court therefore concluded that the producers, including NBC Universal, didn’t have the duty to hire security for the meeting at Tam’s Burgers. Applying the Rowland factors, the court of appeal ul- timately held that the producers didn’t have a duty to protect Carter from Knight (both of whom were third parties) and therefore couldn’t be liable for Knight’s unexpected violent attack on Carter. Lilian Carter, et al. v. NBC Universal, et al. (California Court of Appeal, 2nd Appellate District, 7/25/18, unpublished). Bottom line Potential violence in the workplace by or against third parties is a unique issue that usually doesn’t get much thought or attention. However, this case is a good reminder that employers cannot ignore potential threats of workplace violence simply because they are made by or against third parties. If you are aware of a potential 6 August 13, 2018.