Employer Was Not Liable For Harm After Supplying Alcohol To An Employee, Nor For An Employee’s Actions Outside Of The Scope Of Employment

CATEGORY: Client Update for Public Agencies, Private Education Matters, Public Education Matters
CLIENT TYPE: Private Education, Public Education, Public Employers
DATE: Oct 06, 2022

In August 2015, Carmel Musgrove traveled to the Four Seasons Resort in Bora Bora, French Polynesia. She was among those whom producer Joel Silver had invited to accompany him in attending Jennifer Aniston’s wedding.  Musgrove was Joel Silver’s executive assistant, but Musgrove was not required to attend this trip.  Rather, she was invited to come along as a guest.  If she accepted the invitation, she would receive her normal salary, have her expenses paid, and spend ten percent of her time coordinating recreational activities for the group.

The group ate lunches and dinners together, which were prepared by Silver’s personal chef, Martin Herold.   Musgrove attended one of those dinners, during which wine was available.  Musgrove then went to Silver’s family bungalow to watch a movie with his children.  While watching the movie, Musgrove agreed via text message to meet up with Herold.

Over the next hour, Herold and Musgrove kissed and Musgrove drank more wine and ingested cocaine.  After departing from her rendezvous with Herold, Musgrove climbed down the ladder of her private, overwater bungalow for a night swim, and drowned.

Musgrove’s family sued Silver for wrongful death, claiming that he was responsible for their daughter’s death.

In assessing whether Silver was directly or vicariously liable for Musgrove’s death, the Court of Appeal explained the test for direct liability and the four tests for vicarious liability.

To show that Silver was directly liable, the family needed to establish that: 1) Silver placed Musgrove in peril and failed to protect her from that very same peril, or 2) Silver had a special relationship with Musgrove that otherwise obligated him to protect her.

Musgrove’s family alleged that Silver placed Musgrove in danger and then failed to protect her by giving her an excessive amount of alcohol and drugs, and then not preventing her from swimming in the lagoon at night. The evidence indicated that Silver did not supply Musgrove with drugs. The Court of Appeal also stated that at most, Silver merely allowed Musgrove to drink the wine served at the meal.  Because case law indicates that no social host who furnishes alcoholic beverages can be held liable for injury to that person, the Court of Appeal explained that these allegations did not establish direct liability.

The Court of Appeal next examined whether Silver had a special relationship with Musgrove that obligated him to protect her, but concluded that he did not for three reasons. First, Silver did not employ Musgrove, Silver’s movie production company did.  Second, the family sought to hold Silver liable for Silver’s own conduct in failing to protect her from the alcohol he furnished or subsidized, which as explained above, is not a viable theory of liability.  Third, any special relationship between Musgrove and Silver would be limited to when Musgrove was at work. Musgrove was at her private bungalow and not involved in any work-related activities at the time of her death.

As a result, Silver could not be held directly liable for Musgrove’s death. The Court of Appeal next sought to determine if Silver could be held vicariously liable instead.

Generally, for an employer to be held vicariously liable for the actions of their employee, the person suing must show that the employee was both negligent and acting within the scope of employment.  Here, the Musgroves alleged that Herold, as Silver’s personal chef, was Silver’s employee and that he was acting in the scope of his employment when he negligently caused Musgrove’s death.  For purposes of the opinion, the Court of Appeal assumed it to be true that Herold was negligent when he supplied Musgrove with alcohol and cocaine while knowing that she enjoyed swimming at night in the lagoon. Thus, the next matter to be determined was whether Herold acted within the scope of his employment.

Herold had been Silver’s personal chef for over a decade, and would routinely travel with Silver and his family to prepare their meals.  Silver paid Herold a salary and covered his expenses. Herold set his own hours and was simply expected to provide lunch and dinner.

To determine whether an employee acted within the scope of their employment, California has articulated four tests.

The first test asks if the employee’s conduct was required by, engendered by, or was an outgrowth of the employee’s job. Here, Herold’s conduct in meeting up with Musgrove was not at all related to his job as a personal chef for Silver.   This test did not assign liability to Silver.

The second test asks if the employee’s conduct was a reasonably foreseeable result of his employment. Here, Musgrove’s death by accidental drowning after consuming cocaine and alcohol was not at all foreseeable from Herold’s job of preparing meals for Silver.

The third test asks whether the employee’s conduct:  1) conceivably benefited the employer; or 2) was a customary part of the employment relationship.   Herold’s conduct, which resulted in the death of a beloved employee, did not benefit Silver. There was no evidence that Herold had supplied alcohol or cocaine to any of Silver’s employees before, so this was not a customary incident.

Finally, the fourth public policy test asks whether it is fair to shift responsibility for the losses to the employer because the employer benefitted from the injury-producing activity, and such losses are sure to occur from the conduct of the employer’s enterprise.  Here, Herold’s actions were simply too attenuated from his employment as a personal chef to fairly assign liability for the Musgroves’ loss of their daughter to Silver. As a result, no liability for Musgrove’s death was assigned to Silver.

Musgrove v. Silver, 82 Cal. App. 5th 694 (2022).


 This tragic case illustrates the four principles of vicarious liability that can make employers liable for the conduct of their employees.  Generally, an employer should advise employees that personal recreational activities during conferences or work-related travel are voluntary and outside the scope of employment.


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