Caso v. Nimrod Productions, Inc.
Filed May 14, 2008, Publication Ordered June 4, 2008
In the Court of Appeal of the State of California, Second Appellate District
Division of Seven
Cite as 2008 SOS 3342

No Vicariously Liability Against the Loan-out Corporations

Christopher Caso, a professional stuntman, suffered severe head injuries while performing a stunt for a television show called “M.D’s,” a program produced in 2002 by Touchstone Television Productions (Touchstone).

The stunt Caso performed required him to fall through a scored drywall ceiling onto a collapsible gurney and crash pad. Merritt Yohnka was scheduled to be the stunt coordinator for the stunt. However, a few days before the stunt was to be performed, Merritt Yohnka advice Touchstones that he would be unavailable in the said date due to some scheduling conflict. Merritt Yohnka’s was replaced by Randy Hall.

On the day of the stunt, Randy Hall and Peter O’ Fallon refused Caso’s request to drill a hole in the ceiling and failed to ensure the center oPeter O’ Fallon the crash pad was properly placed. The crash pads, which had been provided by Yohnka, were also poorly maintained.

Because of Yohnka’s, Hall’s and O’Fallon’s failure to prepare properly for the stunt, Christopher Caso fell to the ground at an improper angle, missing part of the crash pad and slamming his head on the ground.

Following the accident, the Casos sued O’Fallon, Yohnka and Hall, as well as RPI, MYI and NPI in the Superior Court of Los Angeles County. Caso asserted claims for negligence while Anne Marie Caso alleged loss of consortium.

Meanwhile, O’Fallon, Yohnka, and Hall moved for summary judgment on the ground that each of them was a special employee of Touchstone at the time the accident occurred and was acting in the scope of that special employment.

Thus, under Labor Code section 3601, subdivision (a), workers’ compensation remedies were the exclusive remedies available for a work-related injury to Caso caused by the negligence of a co-employee.

On the otherhand, the loan-out corporations filed their own motion for summary judgment contending none of them was vicariously liable for its individual employee’s negligence because each had relinquished full control over its respective employee to Touchstone.

Thereafter, the motions were consolidated. In support of the consolidated motions, O’Fallon, Yohnka and Hall each testified the use of loan-out corporations was a common practice in the entertainment industry.

Each of them and their loan-out corporation signed a “television player loan-out agreement” with Touchstone. Those agreements stated the corporate defendant was “loaning-out” its employee as outlined in the “attached employment agreement,” subject to the applicable collective bargaining terms. The employment agreements signed by O’Fallon, Yohnka and Hall also incorporated an “inducement” page.

The employment agreements also provided in the event of any injury the parties’ rights would be governed by, and their remedies limited to, those specified in the workers’ compensation laws.

fter which, the Casos filed their opposition to the consolidated motions, arguing triable issues of fact existed as to whether O’Fallon, Yohnka and Hall were special employees of Touchstone and whether their loan-out corporations had relinquished all control over them for purposes of the production in which Caso was injured.

The Superior Court of Los Angeles County granted the consolidated summary judgment motions, finding O’Fallon, Yohnka and Hall were special employees of Touchstone and had been acting in the scope of that employment at the time the accident occurred.

Accordingly, the action against each of them by their co-employee was precluded by section 3601.

The court also concluded that the loan-out corporations did not retain any control over their employees during the loan-out period and thus, could not be held vicariously liable for the acts of their employees.

Because Anne Marie Caso’s claim for loss of consortium was based on her husband’s work-related injury for which workers’ compensation was the exclusive remedy, her claim also failed.

The Casos filed this instant appeal in the Court of Appeal of the State of California, Second Appellate District Division of Seven questioning the trial court’s order granting the summary judgment and the trial court order finding the their’ claims were barred by workers’ compensation exclusivity.

In affirming the trial courts ruling, the Court of Appeal of the State of California, Second Appellate District Division of Seven made the following pronouncements, thus:

Where defendants entered into employment agreements with television studio that expressly identified each defendant as a "special employee" and performed work for the studio, but the studio maintained control over defendants, the production, and the tools and instrumentalities of production, defendants were special employees of the studio and therefore were not liable for a co-employee’s injury.

Workers’ compensation remedies were the exclusive remedies available for a work-related injury caused by the negligence of a co-employee. Corporate defendant that had relinquished full control over an employee to another employer could not be held vicariously liable for employee’s negligence while working for another employer.