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What the heck is "respondeat superior?"

Today’s post is brought to you from The Hollywood Reporter, which discussed a court ruling out of California related to the drowning death of an employee of Joel Silver. It has all the salacious information you want to see out of sort of celebrity news: drugs, sex (maybe), and drama. Link:

So the background is that Joel Silver had employees, and he took some of them to Bora Bora (presumably to do some work). While there, an assistant drowned. The family of the woman who died filed suit against Silver, as the employer of the assistant, and another employee, Silver’s chef, whom the assistant had spent some time prior to her death. Silver had filed for the matter against him to be dismissed, arguing that it was not reasonably foreseeable that his assistant would drown, and that the other employee had not been acting within the course and scope of his employment as a chef for Silver, so that he (Silver and his company) could not be found responsible. Based on the facts (after hours drinking and ingestion of cocaine, and drowning while alone), the Court agreed with Silver and dismissed him from the suit. The chef had a motion for Summary Judgment filed, and will likely refile it. It is unclear what the final outcome will be, but I’m not discussing the final outcome really.

I want to discuss the legal concepts at play here:

When an employee is acting within the course and scope of their employment with their employer, the employer can be held responsible for the actions of the employee. This refers to a legal doctrine called “respondeat superior” which is defined as follows: A legal doctrine, most commonly used in tort, that holds an employer or principal legally responsible for the wrongful acts of an employee or agent, if such acts occur within the scope of the employment or agency.

The opposite is also (usually) true: if an employee is acting OUTSIDE of the course and scope of their employment, even if on the clock, the employer may not be responsible for the actions of the employee. So what defines the course and scope of employment can be a murky concept, one that ends up being very fact-based because not every employment situation is the same (see Uber/Lyft’s legal battle about are they employees or independent contractors for some detailed information about how employment is defined).

Since the employer was let out of the case, what I take away from it is that the court found that the chef employee was not acting within the course and scope of his employment with Silver (i.e. drinking and spending time with the assistant was not part of the chef’s job cooking for Silver). But that is not the end of the inquiry. That is because the question of whether the harm was reasonably foreseeable to the employer is still an open question. A lot of law in workers’ compensation in New Jersey has been devoted to this question, and I think it is informative. An employer cannot turn a blind eye to something and say “not my problem” or “I didn’t know” if they willfully or intentionally didn’t know. There is also a concept of “constructive notice” which comes into play when something has existed for so long that saying they didn’t know or didn’t see it doesn’t seem reasonable. But again, this is usually a very fact-specific question. What we know about the assistant is that Silver brought her and others to Bora Bora, and that he rented the accommodations for his staff. We also know that the assistant and the chef spent some time together, if I recall correctly, at his bungalow, where they drank (THR called it a nightcap) and did cocaine. Afterwards she returned, along, to her own bungalow. A lagoon was nearby and she went for a swim where she drowned, alone. Largely on these facts, it was determined that her drowning was not reasonably foreseeable from her actions by Silver (the chef is still in the case but I’d imagine he will renew his own motion to get out of the case). The family is deciding what they want to do with that decision, and still have the case against the chef, so more may come out.

A small update about the chef can be found here:


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