A Look at Possible Negligence on the Set of Rust

You can tell that you’ve been in insurance just about long enough when you look at a news story and you begin to think about liability coverages, exclusions, negligence, and who’s going to go to court. As I watched news coverage of the shooting on the set of the movie Rust, it struck me as a terrible and tragic event. No one wants to go to work and see their friends or peers shot, even accidentally.

After taking a moment to pray for those involved, my insurance mind started to kick in. The questions began to come to mind.

• Is there negligence?
• Who could be held legally responsible for damages?
• Is there coverage?
• What about workers’ comp?

[Editor’s Note: What follows is strictly an insurance analysis of the situation based on the publicly available information. It is not a legal analysis and therefore will not enter into discussion of any potential criminal charges, including criminal negligence, because insurance is not meant to cover criminal activity, even criminal negligence. It is also not meant to be a discussion of the political views of anyone involved.]

Just in case you haven’t watched any interviews, reports, or reactions, here are some of the facts that we can know for certain.

Certain crew members had raised complaints about safety issues, including the schedule, the distance that some had to travel to get to the ranch where they were shooting, and a relaxed attitude toward the use of firearms.

Alec Baldwin was handed the firearm by “someone” who declared that it’s a cold gun. From his statement, we get that meant that it is not loaded.

He stated that most often he would be handed a firearm by an armorer, or prop handler.

He stated that he had been taught to trust the person who handed him a firearm, who may or may not demonstrate that the firearm was actually loaded in the way that they expected that it should be.

According to the way he stated that he had always done it, he did not take the time to verify whether the gun was loaded or not.

At the direction of the cinematographer, he draws the gun and aims it toward the camera for the current shot. The cinematographer and director are standing in front of Baldwin and the firearm. They are looking at how this moment will appear in the movie.

The gun discharges, firing a live bullet. Baldwin states that he did not pull the trigger. He pulled the hammer part way back, let it go, and the firearm discharged, according to his own statements.

The bullet hits both people. The cinematographer dies at a local hospital.

That is briefly what we know so far. Because we do not have complete information today, we cannot make any truly definitive statements. It’s going to be the purview of the court to sort out the facts and make actual determinations later, but for now we work with what we know.

Is There Negligence?

Before we can answer if there are any insurance implications, we must find out whether or not anyone acted negligently. The elements of negligence should be reviewed.

For someone to be negligent, we need to show that (in the situation) they owed a duty to others, that they breached that duty in some way, that the breach of that duty was the proximate cause of injury, and that injury caused someone to sustain damages.

With that, let’s work backward. We can say with certainty that there were injuries with damages suffered. Two people were shot. One of them died from their wound. We recognize that there are injuries with damages. Again, those damages are in the realm of the courts to determine. The existence of damages is enough for our purposes.

That leads us back to what was the proximate cause of the injuries. It should be clear that the discharged firearm released the bullet, which caused the injury and damages. That checks off another aspect of negligence, but we still haven’t determined if there is any negligence yet. We still have to determine if there was a duty owed and a breach of that duty by anyone in the chain.

Let’s look first at Baldwin. As the individual who was given a firearm, what is his duty that he owes to those around him?

If we take him at his word about how he was trained from his early days in the movie industry (and we have to without evidence to the contrary), we based our judgment on that statement. If he acted this time as he did every other time that he handled a firearm on a movie set, in that he trusted what he was told regarding the status of the firearm (whether or not it was loaded), we could conclude that he had done his duty.

There is, however, another line of thinking. One can make the argument that when you have control of an item that can pose a particular danger to yourself and others, you owe a heightened duty because of the inherent nature of the item that you’re controlling. We can make the argument that a person who handles a firearm ought to be first comfortable with its operation and should be required to verify whether it’s loaded or not and what sort of ammunition is in the firearm. Depending on the type of ammunition, there’s still the possibility of a projectile leaving the barrel and at the very least a concussive shockwave that leaves the barrel, both of which can injure someone.

So, what we’ve come to so far is a solid maybe. Remember that we’re looking for a duty owed by someone where the breach of that duty caused the injuries. If you say that Baldwin had a duty to ensure that the firearm was safe before doing anything with it, then it’s possible that we have a duty owed and a breach of that duty.

If you say that Baldwin did his duty because he accepted a firearm from someone else, then we have to go back to who handed it to him.

Whether or not Baldwin had a duty to inspect the firearm, one thing that he did not anticipate was that it would be loaded with live rounds. That leads us to look at the armorer, who would be responsible for loading the firearm and getting it to him. The armorer would be responsible for the safekeeping, maintenance, and operation of firearms on the movie set. She would also be responsible for any firearms training that should be conducted among the actors.

So then if the armorer had a duty to ensure that the firearm was working properly, and that it was properly loaded for the use in the scene, we can connect the proximate cause of the injury to the armorer’s duty related to the firearm. In this case, the armorer did not ensure that the firearm was unloaded and did not catch that there was at least one live round loaded. With this, we can tie a breach of a specific duty that was owed back to the injuries sustained.

If we consider either of these parties potentially negligent, then we ask the question about the negligence of the production company. Is the entity that was tasked with hiring cast and crew for this movie negligent? This takes us back to the breach of duty that was the proximate cause of the injuries.

What would the potential duties of the production company be? They would have the duty to provide a safe working environment, which for a movie set might include ways to mitigate certain risks inherent in the making of a movie. Since this was a western movie, there are several risky activities that the production company would need to be ready to mitigate, including horses, firearms, explosives, and the climate that they were operating in.

The fact that two people were shot indicates a breach in the production company’s duty to provide a safe working environment and to mitigate the risks associated with inherently risky activities. There are a few places where we could see a breach of their duty.Someone was allowed to bring live ammunition on the set. I’m not an expert in how movies are made, but it seems that the need for live ammunition on a movie set is limited at best.

In addition, if the armorer put live rounds in a firearm without realizing that they were live, that’s a breach in the duty to hire someone qualified for the job, to properly train them in their job, or to properly supervise them while doing their job.

Conclusion

At this point, we might have established individual negligence for one or two people and it’s possible that the entity in charge of the movie set is negligent, as well. It’s worth reminding all of us that we are looking at the facts as we know them today. We don’t have nearly enough information to say definitively whether there is any negligence or liability.