Last June during the filming of Mission Impossible 3, Steven Scott Wheatley, a Hollywood stuntman, was standing near a Chevy Suburban that was supposed to be blown up by a missile. The device planted in the vehicle detonated prematurely and Wheatley was burned over 60% of his body. He is now suing Paramount Pictures, Tom Cruise's production company (Cruise/Wagner) and the independent contractors responsible for pyrotechnics, alleging that their negligence caused him "severe personal injury."
It's worth taking a few moments to read through the actual text of the lawsuit, filed by his attorneys at Federico C. Sayre. Among other charges, Wheatley alleges that the above parties failed to hold safety meetings and training in the use of pyrotechnics. (How many film crews actually meet that California-OSHA standard?) They failed to inspect unsafe conditions. He points to the parties's "undelegable duties" in performing an "abnormally dangerous activity." He also says that they willfully and knowingly placed a defective device in the vehicle. The law itself dictates the language of his accusations - they are trying to prove negligence. I suspect that in the pressure-packed world of film-making, safety violations are routine and "negligence" is as common as cliches in the dialogue.
Comp Pays First
Wheatley is employed by Entertainment Partners. We can assume that he is collecting workers comp for his injuries: his medical bills are being paid and he is receiving 2/3 of his average weekly wage, up to the CA maximum of $728 - although the maximum probably falls well below what Wheatley usually draws as a stuntman. (The CA maximum wage, while signficantly higher than it used to be, is still among the lowest of the major industrial states.)
Wheatley's own employer was not responsible for the injuries. With so many business entities involved, the door to third party liability is wide open. Unlike workers comp, which narrowly defines available benefits, Wheatley is able to sue for pain and suffering, for his inability to manage his home, to show love and affection to his children, and literally, to make love to his wife. In addition, his wife is able to sue for her own (considerable) mental anguish and damages. While his workers comp claim probably runs in the middle to high six figures, the tort liability will likely be in the multiple millions.
Comp vs. Tort Liability
This case brings into stark relief the differences between workers comp and tort liability. Under comp, no matter how severe the injuries, no matter how long the recovery period, benefits are limited to lost wage recovery (up to the fairly low ceiling in CA), medical bill and pharmacy coverage (100%), and some scarring and disfigurement benefits. Comp literally does not contemplate pain and suffering, nor does it recognize the suffering of the family. It's "no fault." While employer negligence might result in some relatively modest penalties, for the most part, it simply doesn't matter.
In trying to prove negligence, Wheatley's lawyers do not necessarily have a slam dunk. Was the device in fact defective? Did someone know that it was likely to fail? Could anyone have prevented the accident? Did Wheatley in any way contribute to the danger? In the world of comp, these questions are irrelevent. The injury occurred at work and is surely work-related. How much Wheatley ultimately collects will be determined by the skill of his attorneys, matched by the plaintiff's formidable legal team.
I expect that the lawyers will come to some agreement prior to trial, settling the case without any finding of negligence. For lawyers, it's mission possible: coming up with a hefty dollar figure that makes the problem go away. For Wheatley and his family, regardless of the outcome of the lawsuit, it's truly mission impossible: trying to salvage a quality life from the ruins of a single moment on the job.