10:35am PT by Eriq Gardner
Tom Cruise's 'American Made' Producers Can't Beat Lawsuit Over Fatal Plane Crash
The messy wrongful death litigation over the fateful plane crash in Colombia for the 2015 shooting of American Made doesn't appear to be ending anytime soon. Not after a Los Angeles Superior Court judge quietly ruled last month that producers including Imagine Entertainment, Cross Creek Pictures and Vendian Entertainment must continue to face the claim that they owed Alan Purwin, one of the individuals killed, a duty of care. As a result, producers are looking at the possibility of a trial currently scheduled for January 2019.
American Made was directed by Doug Liman and starred Tom Cruise as a pilot recruited by the CIA in the 1980s to try to capture drug kingpin Pablo Escobar. The film was released in theaters this past September, and it earned warm reviews and grossed nearly $135 million worldwide. However, it may end up being best remembered for the questions raised about safety in Hollywood filmmaking.
According to court documents, Cruise and Purwin, a helicopter stunt operator, flew a small plane, a Smith Aerostar 600 multiengine, from Tampa, Florida to Medellin, Colombia. The families of those killed allege that Liman and Cruise had added additional scenes and new aerial shots.
At a summary judgment hearing last month, a lawyer for the production companies said that after filming had been completed, the Aerostar landed at an airport in Santa Fe de Antioquia. Cruise got out, and Carlos Berl, an airman, got in. Jimmy Garland, a mechanic who ran S&S Aviation, was also aboard. The plane then began its journey back to Medellin about 35 miles away. It's highly disputed who was actually piloting the aircraft when it crashed in a remote mountainous area of Columbia, killing both Purwin and Berl and severely injuring Garland.
This would lead to a dizzying array of lawsuits including one from Purwin's family, one from Berl's family, one from the insurance company and one from the producers. Everyone is looking to attribute blame for what happened.
Imagine, Cross Creek and Vendian moved for summary judgment in the Purwin lawsuit on the grounds they didn't owe Purwin a duty of care. The producers argued they were merely responsible for creative decisions and financing and that the aerial coordinator's company was in charge of selecting pilots, selecting aircrafts and controlling the use of the aircraft.
Judge Lisa Hart Cole responded in a ruling that whether Purwin is an employee or an independent contractor is "multi-faceted, fact intense inquiry that must be performed by the trier of fact," meaning a jury.
She then looked at another theory of liability — that producers owed a duty of care because while making the film, they had a duty to do so safely. She points to the testimony of American Made producer Brian Oliver.
"Brian Oliver admitted during deposition that the producers are expected to know what is happening on set and take steps to keep things safe," wrote Cole in the decision denying producers summary judgment. "In addition, Plaintiffs contend Cross Creek contractually agreed through its controlled affiliated CCP Mena Film Holdings II, LLC, to maintain day-to-day control and decision making authority over the production, including safety. Imagine and Quadrant had representatives on set in Colombia and directly participating in safety decisions."
Cole adds, "Moreover, Plaintiffs theory of liability is based on the Producer Defendants creating an unsafe set by pushing to finish the film and creating an intolerable pace and exhausting pressure. Plaintiffs contend Carlos Berl was pressured by the Producer Defendants to stay on schedule after being allowed on set, despite the set being closed. To the extent Producer Defendants argue that they delegated any duty of care to the aerial coordinator, the duty was non-delegable. Because the work to be performed carried an inherently dangerous risk, the peculiar risk doctrine applies and Producer Defendants are still directly responsible for aerial safety."
Will a trial take place early next year in Los Angeles?
Well, the situation gets more complicated thanks to the lawsuit filed in Georgia federal court by producers against S&S seeking indemnification. That suit looks to hold Garland's company negligent in "failing to properly inspect, repair, maintain and ensure airworthiness of the Subject Aircraft" and "failing to operate the Subject Aircraft in a safe manner, including, but not limited to, failure to provide adequate pre-flight preparation, briefing, instruction, training and supervision to the pilot in command."
After the lawsuit was filed in September, an intriguing motion was filed by the producers to drop Imagine Entertainment — the company co-founded by Ron Howard and Brian Grazer — as a co-plaintiff in the case. Rather mysteriously, the plaintiffs say a confidentiality agreement prevents Imagine from publicly disclosing the identities of Imagine's limited partners. A judge has yet to rule on the motion which may force Howard and Grazer to reveal their minority investors.
In the meantime, there have been other developments including settlements in separate lawsuits between Berl's family, Purwin's and Garland's company. Now, the producers are attempting to disqualify the lawyers representing Garland's company, S&S, for their past representation of Purwin's company, Heliblack, which was the owner of the airplane that crashed.
On Monday, in arguing that a conflict of interest is apparent, the producers imagined a verdict form in a case that they tell the judge must be determined in the Superior Court of Cherokee County, Ga. The producers said the verdict form might look like this:
We, the members of the jury, find that the proximate cause of the crash was the negligence of the following, based on their respective percentages of fault:
Heliblack, LLC __________ %
S&S Aviation, Inc. __________ %
Carlos Berl ___________ %
Alan Purwin ___________ %
Production Defendants ________%