General

Wrongful Death Claim Against Alec Baldwin, et al.? Probably Not – He Will Be Shielded By Worker’s Compensation’s Exclusive Remedy

1st Question - Worker's Compensation

Alec Baldwin is probably protected from civil liability due to New Mexico’s worker’s compensation laws.

52-1-9. Right to compensation; exclusive.

The right to the compensation provided for in this act, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:
A. at the time of the accident, the employer has complied with the provisions thereof regarding insurance;
B. at the time of the accident, the employee is performing service arising out of and in the course of his employment; and
C. the injury or death is proximately caused by accident arising out of and in the course of his employment and is not intentionally self-inflicted.



N.M. Stat. Ann. § 52-1-9 

52-1-46. Compensation benefits for death.

Subject to the limitation of compensation payable under Subsection G of this section, if an accidental injury sustained by a worker proximately results in the worker’s death within the period of two years following the worker’s accidental injury, compensation shall be paid in the amount and to the persons entitled thereto as follows:
A. if there are no eligible dependents, except as provided in Subsection C of Section 52-1-10 NMSA 1978 of the Workers’ Compensation Act [Chapter 52, Article 1 NMSA 1978], the compensation shall be limited to the funeral expenses, not to exceed seven thousand five hundred dollars ($7,500), and the expenses provided for medical and hospital services for the deceased, together with all other sums that the deceased should have been paid for compensation benefits up to the time of the worker’s death;
B. if there are eligible dependents at the time of the worker’s death, payment shall consist of a sum not to exceed seven thousand five hundred dollars ($7,500) for funeral expenses and expenses provided for medical and hospital services for the deceased, together with such other sums as the deceased should have been paid for compensation benefits up to the time of the worker’s death and compensation benefits to the eligible dependents as hereinafter specified, subject to the limitations on maximum periods of recovery provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978;
C. if there are eligible dependents entitled thereto, compensation shall be paid to the dependents or to the person authorized by the director or appointed by the court to receive the same for the benefit of the dependents in such portions and amounts, to be computed and distributed as follows:
(1) if there is no widow or widower entitled to compensation, sixty-six and two-thirds percent of the average weekly wage of the deceased to the child or children;
(2) if there are no children, sixty-six and two-thirds percent of the average weekly wage of the deceased to the widow or widower, until remarriage; or
(3) if there is a widow or widower and children:
(a) if all the children are living with the widow or widower, forty-five percent of the weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978 to the widow or widower and fifty-five percent divided equally to the children; or
(b) if no child is living with a widow or widower, forty percent of the weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA 1978 to the widow or widower and sixty percent divided equally to the children; and
(4) two years’ compensation benefits in one lump sum shall be payable to a widow or widower upon remarriage; however, the total benefits shall not exceed the maximum compensation benefit as provided in Subsection B of this section;
D. if there is neither widow, widower nor children, compensation may be paid to the father and mother or the survivor of them, if dependent to any extent upon the worker for support at the time of the worker’s death, twenty-five percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to such dependents exceed the amounts contributed by the deceased worker for their care; provided that if the father and mother, or the survivor of them, was totally dependent upon such worker for support at the time of the worker’s death, they shall be entitled to fifty percent of the average weekly wage of the deceased;
E. if there is neither widow, widower nor children nor dependent parent, then to the brothers and sisters and grandchildren if actually dependent to any extent upon the deceased worker for support at the time of the worker’s death, thirty-five percent of the average weekly wage of the deceased worker with fifteen percent additional for brothers and sisters and grandchildren in excess of two, with a maximum of sixty-six and two-thirds percent of the average weekly wage of the deceased, and in no event shall the maximum compensation to partial dependents exceed the respective amounts contributed by the deceased worker for their care;
F. in the event of the death or remarriage of the widow or widower entitled to compensation benefits as provided in this section, the surviving children shall then be entitled to compensation benefits computed and paid as provided in Paragraph (1) of Subsection C of this section for the remainder of the compensable period. In the event compensation benefits payable to children as provided in this section are terminated as provided in Subsection E of Section 52-1-17 NMSA 1978, a surviving widow or widower shall then be entitled to compensation benefits computed and paid as provided in Paragraphs (2) and (4) of Subsection C of this section for the remainder of the compensable period; and
G. no compensation benefits payable by reason of a worker’s death shall exceed the maximum weekly compensation benefits as provided in Sections 52-1-41 through 52-1-43 and 52-1-47 NMSA l978, and no dependent or any class thereof, other than a widow, widower or children, shall in any event be paid total benefits in excess of seven thousand five hundred dollars ($7,500) exclusive of funeral expenses and the expenses provided for medical and hospital services for the deceased paid for by the employer.



N.M. Stat. Ann. § 52-1-46 

Wrongful Death against persons not protected by Worker's Compensation Exclusive Remedy Bar

If any of the negligent parties were not fellow employees of the injured person, covered by worker’s compensation, then nothing in New Mexico’s laws prevent the injured person from recovering both worker’s compensation and full tort damages.  The N.M. Court of Appeals explained: “In Gutierrez v. City of Albuquerque, 121 N.M. 172, 178, 909 P.2d 732, 738 (Ct. App.), cert. granted, 120 N.M. 828, 907 P.2d 1009 (1995), we recognized that  Section 52-1-10.1 provided one legislatively recognized instance in which the injured worker could recover both workers’ compensation benefits and the worker’s full measure of tort damages, even if that would amount to “double recovery.” The legislature having provided an exception to the usual rule prohibiting double recovery found in the reimbursement section of the workers’ compensation laws, NMSA 1978, § 52-5-17 (1990), we cannot say that there is anything in the spirit of the WCA that would prohibit the imposition of joint and several liability that we have already recognized.

Enriquez v. Cochran, 1998-NMCA-157, ¶ 116, 126 N.M. 196, 226, 967 P.2d 1136, 1166

52-1-10.1. Allocation of fault; reimbursement.

Notwithstanding anything in the worker’s compensation law to the contrary, if the fault of the worker’s employer or those for whom the employer is legally responsible, other than the injured worker, is found to have proximately caused the worker’s injury, the employer’s right to reimbursement from the proceeds of the worker’s recovery in any action against any wrongdoer shall be diminished by the percentage of fault, if any, attributed to the employer or those for whom the employer is responsible, other than the injured worker.



N.M. Stat. Ann. § 52-1-10.1 (LexisNexis, Lexis Advance through all 2021 regular and special sessions)

Wrongful Death Claims in New Mexico

New Mexico has a cause of action for wrongful death by statute:

Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, although such death shall have been caused under such circumstances as amount in law to a felony, and the act, or neglect, or default, is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or the corporation which, would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.

N.M. Stat. Ann. § 41-2-1

Who can file the suit?

41-2-3. Personal representative to bring action; damages; distribution of proceeds.

Every action mentioned in Section 41-2-1 NMSA 1978 shall be brought by and in the name of the personal representative of the deceased person, and the jury in every such action may give such damages, compensatory and exemplary, as they deem fair and just, taking into consideration the pecuniary injury resulting from the death to the surviving party entitled to the judgment, or any interest in the judgment, recovered in such action and also having regard to the mitigating or aggravating circumstances attending the wrongful act, neglect or default. The proceeds of any judgment obtained in any such action shall not be liable for any debt of the deceased; provided the decedent has left a spouse, child, father, mother, brother, sister or child or children of the deceased child, as defined in the New Mexico Probate Code [Chapter 45 NMSA 1978], but shall be distributed as follows:

A. if there is a surviving spouse and no child, then to the spouse;

B. if there is a surviving spouse and a child or grandchild, then one-half to the surviving spouse and the remaining one-half to the children and grandchildren, the grandchildren taking by right of representation;

C. if there is no husband or wife, but a child or grandchild, then to such child and grandchild by right of representation;

D. if the deceased is a minor, childless and unmarried, then to the father and mother who shall have an equal interest in the judgment, or if either of them is dead, then to the survivor;

E. if there is no father, mother, husband, wife, child or grandchild, then to a surviving brother or sister if there are any; and

F. if there is no kindred as named in Subsections A through E of this section, then the proceeds of the judgment shall be disposed of in the manner authorized by law for the disposition of the personal property of deceased persons.

Wrongful Death Damages - in addition to lost income, and the value of the life lost, what about non-pecuniary damages?

In 1994, the New Mexico Supreme Court reversed the law and permitted the jury to award damages to the statutory beneficiaries based upon their sense of loss arising from the wrongful removal of their loved one, but with a twist:

The New Mexico Supreme Court reviewed the law and in response to a question from a federal court, stated:

In the first case, Romero v. Byers, we reverse and recognize a claim for loss of spousal consortium. In the related question certified to this Court by the Court of Appeals regarding the motion in limine, we affirm. Damages for loss of spousal consortium may not be awarded under the Act but must be sued for by the spouse or the personal representative in an individual capacity. Even though Mrs. Romero is now deceased, this action may be continued by her personal representative.

 In the first question certified by the Federal District Court, Sears v. Nissan, we hold that the value of life itself is compensable under the Act. Admissibility of evidence directed at establishing this value is governed by the rules of evidence of the applicable trial court.

In the second question certified in Sears, we hold that loss of guidance and counseling by a minor child is a pecuniary injury under the Act and that SCRA 13-1830 does not bar recovery.



Romero v. Byers, 1994-NMSC-031, ¶¶ 24-26, 117 N.M. 422, 429, 872 P.2d 840, 847

Who was negligent?

Civilly, it won’t make much difference — because all of the fellow employees are protected by New Mexico’s Worker’s Compensation Laws. Nevertheless, here are the likely suspects of negligent actors:

  • Alec Baldwin – who shot and killed director of photography Halyna Hutchins, married and mother of one child.
  • Dave Halls, who is reported to have handed Baldwin the gun telling him it was a “cold gun” without live rounds.
  • Hannah Gutierrez Reed was the armorer responsible for the firearm on the set.
  • Individual who put live rounds into the revolver and failed to remove it.
  • Their employers under the principle of vicarious liability.

What constitutes "Negligence"?

Failure to act like a reasonably prudent person in the exercise of ordinary care would do!

Did Alec Baldwin, et al. fail to do what a reasonably prudent person in the exercise of ordinary care would do?  A jury will be instructed,

“A failure to act, to be negligent, must be a failure to do an act which one is under a duty to do and which a reasonably prudent person in the exercise of ordinary care would do.”

N.M. UJI 12.1

White v. City of Lovington, 1967-NMCA-034, ¶ 11, 78 N.M. 628, 629-30, 435 P.2d 1010, 1011-12

“To impose a duty, a relationship must exist that legally obligates [a d]efendant to protect [a p]laintiff’s interest,” and in the absence of such a relationship, “there exists no general duty to protect others from harm.” Johnstone, 2006 NMCA 119, P7, 145 P.3d 76.

Estate of Haar v. Ulwelling, 2007-NMCA-032, ¶ 15, 141 N.M. 252, 255, 154 P.3d 67, 70

What happened?

On the set of “Rust”, Alec Baldwin, failed to personally check the Colt revolver, practicing a cross-draw, pulled the trigger and shot director of photography Halyna Hutchins, wife and mother of one child.  

Alec Baldwin failed to act as a reasonably prudent person in the exercise of ordinary care by violating the most basic rule of gun safety.

  • Assume a firearm is loaded until you personally check and clear it, making sure there are not any rounds of ammo in the gun! 

On the set of “Rust,” assistant director Dave Halls, handed Alec Baldwin, the revolver and told him it was a “cold gun” without actual knowledge, and thereby failed to act as a reasonably prudent person in the exercise of ordinary care by violating the most basic rule of gun safety.

  • Assume a firearm is loaded until you personally check and clear it, making sure there are not any rounds of ammo in the gun!
  • Mislead and aided Alec Baldwin in his failure. 

On the set of “Rust,” Hannah Gutierrez Reed was the armorer responsible for the firearms on the set, and failed to act as a reasonably prudent person in the exercise of ordinary care by failing to secure the firearms in such a way that would permit a person to load a live round into a firearm being used on the set, by permitting a firearm to leave her supervision without ensuring that the firearm was not loaded with a live round of ammo, etc.  Time will tell the merits of her claim, that “She fought for training, days to maintain weapons, and proper time to prepare for gunfire but ultimately was overruled by production and her department.” 

Misc.

R.I.P.

On March 5, 2018, Alec Baldwin tweeted “The Second Amendment is not a moral credit card that buys you all the guns you want. While this case does cause people to ask with Baldwin – “Does the law need to be rethought?”  Shouldn’t Baldwin be held personally liable?  Contrary to CNN’s Andy Rose’s report that  “a crew member was killed after a gun held by actor Alec Baldwin went off during rehearsal” guns don’t just go off –Alex Baldwin pulled the trigger while the gun was pointed at Halyna Hutchins.  This is a tragedy that is not the responsibility of gun manufacturers – it is the responsibility of Alec Baldwin and others on the set.  Maybe the law does  need to be rethought – shouldn’t it hold him and others personally responsible for the tragic loss of Halyna Hutchins. The whole world sees your bloody hands and sadly you will likely escape personal responsibility for negligence.  This is a sad irony for Alec Baldwin a member of the group NoRA which threatened manufacturers of steel used by Alec Baldwin for profit in entertainment industry stating “We’re going to make sure the whole world sees your bloody hands. We’re coming for your money. We’re coming for your puppets. And we’re going to win.”  Only by holding each person who wrongfully shoots and injures another responsible will gun violence be addressed.

Disclaimer

The materials are prepared for information purposes only.  The materials are not legal advice.  You should not act upon the information without seeking the advice of an attorney.  Nothing herein creates an attorney-client relationship.  Nothing is this post should be deemed the practice of law, nor the purposeful attempt or act to avail the lawyers or law firm of any law or jurisdiction other than Virginia.