On The Tonight Show Starring Jimmy Fallon the other night, the host and Matthew McConaughey competed to see who could throw the most footballs at the other guy’s face. Not his physical face, of course, but glass plates printed with each guy’s face. Toward the end, McConaughey steps in front of Fallon as he is about to throw, and I immediately start thinking, “What if he hits the actor square in the nose with a football?”
As an employment lawyer, I wasn’t so concerned about McConaughey’s career. Did you see him as modern day Rust Cohle? Dude can pull off ugly just fine. No, my concern was whether he could be compensated for his injuries. Would it be covered by workers’ comp? Could he sue The Tonight Show or Fallon? Turns out, Hollywood has had to deal with these kinds of safety issues in the past. Here are two cases worth noting.
In 2002 an extra working on the remake of Planet of the Apes sued Fox Entertainment for injuries allegedly suffered by heavy dust that the filmmakers blew across the set during a battle scene. The general rule is that workers’ compensation is the exclusive remedy for on-the-job injuries. The extra argued that the producers knew the blowing dust was harmful and thus they committed an intentional tort, which is not barred by workers’ compensation exclusivity. A California appellate court rejected that argument. Plaintiffs often try to get around workers’ compensation by accusing employers of intentional torts and seeking emotional and punitive damages. In the California case, however, the court relied on the crucial difference between acts of gross negligence and actual intent to injure, finding the case fell into the former category.
In 2006 actress Tippi Hedren of Hitchcock fame was injured on the set of the television show Fashion House. She sued the building owner and management firm for her injuries, but curiously did not sue her agent for putting her on Fashion House. Her attorney filed a voluntary dismissal without prejudice before trial, but he neglected to include a provision that would toll the limitations period on her action. Big mistake. When he subsequently refiled the lawsuit, it was dismissed as time-barred. As a result, Hedren won a malpractice verdict against her attorney for more than $1.4 million, most of which compensated her for physical, emotional, and economic injuries as a result of the accident.
So in closing, don’t throw footballs at each other’s faces, and hire a decent lawyer.