CNN reported today that the Michael Jackson wrongful death case will go to a jury for a decision. The attorneys for the defendant, AEG Entertainment Group (AEG), filed a motion to have the case dismissed but, this was overruled. (See full CNN report here: Michael Jackson trial). The jury trial has been going on since late April of this year and countless witnesses have presented testimony for the plaintiffs (the Jackson family) and the defense, AEG. There is some indication that Michael Jackson’s mother may be recalled as a witness and then both sides will present closing arguments and the jury will render a verdict. In order for the Jackson family to prevail, the jury will need to decide that AEG was negligent in hiring, supervising or retaining Dr. Conrad Murray, who has been criminally convicted of providing a lethal overdose of narcotics to Michael, thereby causing his death. I wanted to explore what California law requires for proving such a case in this post.

What Elements Will the Michael Jackson Jury Need to Decide Were Proven By the Evidence to Hold AEG Liable for Negligence?

As with any trial by jury in the State of California, the jury will be instructed on the law by the judge through pre-approved jury instructions. The principal jury instruction in play for purposes of holding AEG liable for Jackson’s death will be California Civil Jury Instruction 426, which requires the following:

That Dr. Conrad Murray was “unfit or incompetent” to perform the work for which he was hired; That AEG “knew or should have known” that Dr. Murray was “unfit or incompetent” and this created a “particular risk” to Michael Jackson (through his surviving heirs); That Murray’s “unfitness or incompetence” harmed Jackson (and his family) and the unfitness or incompetence was a “substantial factor” in causing this harm.

According to all reports about the trial, the evidence that has been presented on these issues is that Dr. Murray allegedly had a less than stellar history has a medical doctor and that Jackson’s behavior and various communications between Jackson, Murray and AEG executives did or should have put AEG on notice that Murray was unfit or incompetent and creating a risk to Jackson. This evidence was presented in the form of both live testimony and documents such as emails.

AEG has countered that they did not actually employ Murray but, rather, he was an employee of Michael Jackson. The problem with that argument is that written evidence was presented to show that Murray was on AEG’s “payroll” and that he was being directed to act by AEG executives to ensure that Michael would make all necessary appearances for the world tour which they were promoting.

As the California courts have ruled on this issue:

“Liability for negligent hiring and supervision is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees. The tort has developed in California in factual settings where the plaintiff’s injury occurred in the workplace, or the contact between the plaintiff and the employee was generated by the employment relationship.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339—1340. In addition the California courts have held that, “Liability may also be imposed on the hirer of an independent contractor for the negligent selection of the contractor. (See Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 662—663).

What Damages May be Recovered by Jackson’s Mother and Children if the Jury Rules That AEG is Liable for Michael Jackson’s Death?

Negligence causing a wrongful death under California law entitles the direct heirs including spouses or, in this case, a parent and children, to various money damages. The jury will be read “the law” on this issue by way of California Civil Jury Instruction 3921 which provides that these heirs are entitled to recover the following:

The financial support that Michael Jackson would have contributed to the family during the shorter of either the life expectancy of Michael Jackson or the life expectancy of the heirs; The value of “gifts or benefits” that the heirs would have expected to have received from Michael Jackson; The cost of “funeral and burial expenses”; and The “reasonable value of household services”.

In addition to these financial losses and costs, the plaintiffs would also be entitled to the “love, companionship, comfort, care, assistance, protection, affection, society, moral support” and, in the case of the children, the value of the “loss of training and guidance.”

Evidence has been presented by Michael’s children and mother and various financial experts including forensic accountants as to the amount that Michael would have earned and provided by way of support, gifts or benefits as well as the costs of the funeral and burial. In addition, Michael’s mother and children also testified as to the nature and extent of their relationship with Jackson.

AEG has tried to counter these arguments by presenting evidence that Michael’s potential earning capacity and net worth were diminishing. They will likely argue that Jackson had a diminished life expectancy given his health and substance abuse problems. They have attempted to argue for a lower award for “love, companionship, etc.” by tough cross-examination (mainly on Michael’s mother) as to how close of a relationship she (and the children) really had with Michael.

It will be interesting to see how this all plays out with the jury. The attorneys for both sides will “argue” their view of what the evidence showed in their closing but, the judge will advise the jury that their arguments are not evidence and that the case should be decided on the evidence alone.

Additional Resources:

1. Wrongful Death Lawsuits in California

2. The First Steps for A California Wrongful Death Claim