Atlanta, GA (WorkersCompensation.com) – The Georgia Court of Appeals threw out the $8 million jury award to the family of a stuntman who died on the set of “The Walking Dead”.
The court said the 2019 award for civil claims brought by the parents of John Bernecker were barred by the Workers’ Compensation Act, in a case previously covered by WorkersCompensation.com.
In July 2017, 33-year-old Bernecker was rehearsing a fight scene with one of the shows regulars. In the scene, he was supposed to fall from a balcony 25 feet off the ground. When he fell, instead of hitting the air bag that had been placed there for the stunt, he hit the concrete next to it. Two days later, he died from injuries to his head.
Bernecker’s parents, Susan and Hagen Bernecker, sued AMC Networks, Stalwart Films and others, in Gwinnett County State Court. Their attorneys argued the companies producing the show were sparing on security measures due to financial and scheduling reasons.
Additionally, they argued that mistakes made by the actor in the scene caused Bernecker to become entangled in the railing of the balcony.
“At trial, the plaintiffs’ accident reconstruction and biomechanical expert hypothesized that Bernecker became entangled in the railing after (Austin) Amelio inadvertently touched him in the back with his prop handgun, despite Amelio being warned specifically not to touch Bernecker during the stunt,” court documents said. “The expert opined that based on the video of the fall, Bernecker’s intentional stunt was interrupted by Amelio’s inadvertent touching, turning the stunt into an unintentional fall, which Bernecker either reflexively or intentionally attempted to control by grabbing onto the rail, resulting in a pendulum swing propelling him to land headfirst past the catcher system onto the unprotected area of concrete.”
Attorneys for the defense argued that Bernecker’s death was due to an unforeseeable accident, and that even if Bernecker was found to be an independent contractor, he was a statutory employee of Stalwart Films, and therefore claims could only be made through the workers’ compensation system.
In 2019, a civil jury found that AMC was not negligent, but awarded Bernecker’s parents $8 million from Stalwart Films and others it found to be at fault.
The companies appealed to the state’s appellate court.
In their decision, Judges Sara Doyle, Christopher McFadden and Ken Hodges ruled that claims against Stalwart Films and the four other companies sued were barred by the Workers’ Compensation Act because they determined Bernecker to be an employee of Stalwart Films.
“[U]nder longstanding Georgia law, the true test to be applied in determining whether the relationship of the parties under a contract for the performance of labor is that of employer and servant, or employer and independent contractor, lies in whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract,” the appeals court said in its ruling.
Because Stalwart had an “employer for hire” contract with Bernecker, the court determined that he was Stalwart’s employee for the day.
“The document is not ambiguous. It refers to Stalwart as the “employer-for- hire,” and in the attached “Schedule A” it states in paragraph 1. ‘Employment: This Agreement covers the employment of the above named Stunt Performer by [Stalwart]. . . .’ To the extent that the plaintiffs argued that it was ambiguous because there was no signature for Bernecker’s loan-out personal corporation, Bernecker’s signature appears next to ‘performer’ and would create a clear employer-employee relationship rather than that of a borrowed servant normally created under industry contracts,” the court wrote.
Additionally, because the film studio controlled Bernecker’s time and the manner and method in which he worked.
“The right to control the time means the employer has assumed the right to control the person’s actual hours of work. The right to control the manner and method means the employer has assumed the right to tell the person how to perform all details of the job, including the tools he should use and the procedures he should follow,” the court wrote. “In this case, although Bernecker could request minor changes to assist him in performing the stunt, such as a higher apple box lift or a larger catcher system, or he could refuse to perform the stunt if he felt unsafe, ultimately Stalwart retained the right to control the time, manner, and method of the work Bernecker performed. The stunt was choreographed as part of a larger scene, and Bernecker was directed as to how exactly he should appear to act during the stunt. His slightest movement or body placement was subject to the direction of Stalwart. Moreover, Bernecker had a specific call time on a specific day, he was expected to perform when the director called for the scene, and he did not have authority to change the time when he could perform.”