The shocking train accident that killed second assistant camerawoman Sarah Jones and injured several others during the filming of Midnight Rider has spread grief and anguish throughout the industry. Jones’ friends have challenged all members of the industry to take an online safety pledge and marches have been held. Even the Academy Awards telecast included an “in memoriam” reference. The question now is, who, if anyone, — The director/producer? The other producers? Others on the set that day? — will be held responsible?
The Midnight Rider crash occurred Feb. 20 in Wayne County, Ga., when a crew was sent onto a narrow trestle to shoot on live train tracks. As THR has reported, the cast and crew were told that if a train appeared, everyone would have 60 seconds to clear the tracks. Later, when one did, barreling down on them at nearly 60 mph, one minute was not enough time for Jones and several others on the tracks to escape. Multiple investigations by local, state and federal authorities are ongoing, including a probe into potential negligent homicide.
The principals involved in the production have not commented on what, if any, safety protocols were in place, although Nick Gant, creative director of the Savannah-based film-crew services company on the film, has denied that any corners were cut. Yet an initial Sheriff’s Department report quoted an official from CSX, the railroad company that owns the tracks, as saying the production had been denied permission to shoot there. The report also said that when the executive producer was asked if it had permission, he responded, “That’s complicated.”
Safety guidelines covering film and TV productions are set by an industry-wide Labor-Management Safety Committee ?that also establishes training courses.? Notably, these guidelines are nonbind?ing. Bulletin No. 28 addresses railroad ?safety: “There are strict rules governing ?rail work. Check with the [local authorities] and with the owner/operator for local regulations, specific guidelines and required training.” According to its website, CSX “generally does not allow filming for movies, television or commercials on its property.”
Before those responsible for running the production went to the location in question, “they should have had a complete set of executed location agreements between them and the property supervisors and the railroad,” says Marty Katz, a producer and production manager with nearly four decades of experience, including 10 years as vp motion picture and television production at the Walt Disney studio. “It is black and white,” he adds. “There are no such things as verbal agreements for location agreements.”
If a production is moving into risky territory, says Katz, a number of Directors Guild of America members on set are “the court of last resort” in terms of declining to proceed. They include the director, the production manager, line producer and, most importantly, the first assistant director. The DGA’s agreement with employers requires the first AD to “inspect the set daily for potential safety violations and report any such problems.”
But in a statement, the DGA notes that while “addressing safety concerns is a collaborative effort, involving competent and qualified safety personnel, DGA members and other crew members, those ultimately responsible for ensuring a safe set are the employers.”
That’s where federal law puts the responsibility as well: on the employer. Legally, a crew’s employer is the production entity, which is usually controlled by a studio or independent producer (director Randall Miller‘s Unclaimed Freight Productions was making Midnight Rider). Criminal liability may differ, though; for instance, in the Twilight Zone: The Movie case, in which a helicopter crashed into the set of the 1982 production, killing three actors, among the people charged — but later acquitted — was director John Landis.
Some states, including California, have workplace safety agencies, but Georgia, like other runaway production centers such as Louisiana, relies on the federal Occupational Safety and Health Administration, which is investigating the Midnight Rider case along with the Georgia Bureau of Investigation and local law enforcement. No conclusions have been issued or arrests made, and it’s unclear how long the investigations will last.
It’s hardly clear that the lack of a Georgia agency mattered in this case but Cal/OSHA requires all employers to have an Illness and Injury Prevention Program and to communicate it to employees. The federal agency doesn’t.
Not all serious injuries come from extra-hazardous activity. In fact, wear and tear presents one of the greatest risks most routinely faced by crews, who commonly work days of 14-plus hours. Oscar-winning cinematographer Haskell Wexler has pursued reform in this arena since the 1997 death of 35-year-old assistant camera operator Brent Hershman, who crashed his car driving home after a 19-hour day on the set of Pleasantville.
In his documentary, Who Needs Sleep?, Wexler outlines the serious dangers of chronic exhaustion and pursues OSHA as well as representatives of the International Alliance of Theatrical Stage Employees to ask why nothing has been done to ensure that the crew is rested or, at minimum, transported home after working dangerously long hours.
For many in the industry following the Midnight Rider case, what happened in Georgia is a manifestation of a too-common lack of regard for safety in ?an industry in which economic pressures are growing and oversight can be lax, especially on shoots in states intent on luring productions with incentives. Directors are under pressure to produce dazzling shots while moving fast, often facing financial penalties if they go over schedule or over budget. With fewer films being made, unions that represent crews are pushed to find work for their members, perhaps, one could speculate, at the expense of insisting on safety measures that cost time and money.
Kent Jorgensen, an official with the International Alliance of Theatrical Stage Employees and co-chair of the industry-wide safety committee, acknowledges the tension. “I’m a union leader,” he says. “I’ve got a faction that wants one thing, another one that wants something else. Some people want to stop hours. Some say, ‘I want to pay for my boat with my overtime.’ It’s a tough call.”
It’s also why improving on-set safety is difficult, though Jones’ death may finally force the issue. “With that visibility, maybe there’ll be change,” says Wexler. Adds Jorgensen, “Safety regulations are written in blood. Most of the time it takes injury or death. If there’s a near miss, we just show our scars.”