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Jackson v. AEG Live, LLC

California Court of Appeals, Second District, Fifth Division

January 30, 2015

KATHERINE JACKSON, Plaintiff and Appellant,
AEG LIVE, LLC et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC445597, Yvette M. Palazuelos, Judge.

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Reed Smith, Margaret M. Grignon, Zareh A. Jaltorossian, Paula M. Mitchell; Panish Shea & Boyle, Brian J. Panish, Kevin R. Boyle and Robert S. Glassman, for Plaintiff and Appellant.

O’Melveny & Myers, Marvin S. Putnam and Jessica Stebbins Bina, for Defendants and Respondents.



Plaintiff Katherine Jackson, on behalf of herself and as guardian ad litem of Michael Joseph Jackson, Jr., Paris-Michael Katherine Jackson and Prince Michael Jackson II (collectively, the “Jacksons”), appeals from a judgment in favor of defendants AEG Live, LLC, AEG Live Productions, LLC, Brandon Phillips, and Paul Gongaware (collectively, “AEG”) in this negligence action in connection with Michael Jackson’s (“Michael”) death. AEG hired Dr. Conrad Murray as Michael’s personal physician for a concert tour. Michael died of acute propofol intoxication while under Dr. Murray’s care. The Jacksons filed this action seeking to hold AEG liable on theories of negligence. The trial court summarily adjudicated causes of action for negligence and respondeat superior. The sole cause of action at trial was for negligence hiring, retention, and supervision. The jury found AEG hired Dr. Murray, however, he was not unfit or incompetent to perform the work for which he was hired.

On appeal, the Jacksons contend that the trial court erred by granting summary adjudication, because: (1) triable issues of fact exist as to whether AEG was negligent, because AEG’s conduct created an increased risk of harm to Michael, AEG voluntarily undertook to provide protective services to Michael, and AEG had a duty arising by contract; and (2) triable issues of fact exist as to respondeat superior, because Dr. Murray was an employee of AEG, agent of AEG, or an independent contractor whose work presented a peculiar risk of harm. The Jacksons further contend the court erred by modifying the jury instruction and special verdict form on the negligent hiring, retention, and supervision claim because the instruction and verdict only address hiring, but not retention or supervision. Lastly, they contend the special verdict was legally insufficient to support the judgment. We conclude that the trial court did not err in summarily adjudicating negligence because AEG did not owe Michael a duty to refrain from exerting pressure over Dr. Murray, AEG did not undertake to provide protective services to Michael, and AEG owed Michael no duty arising out of the contract with Dr. Murray. The court also did not err in summarily adjudicating respondeat superior

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because the undisputed facts establish that Dr. Murray was an independent contractor as a matter of law, AEG is not liable under the peculiar risk doctrine as an independent contractor, and Dr. Murray is not an agent of AEG. Furthermore, the trial court did not err in instructing the jurors with a modified jury instruction along with the special verdict form. Finally, we hold that the special verdict was legally sufficient. We affirm.


On September 15, 2010, the Jacksons filed a complaint against AEG and other defendants alleging causes of action including (1) negligence, [1] (2) negligent hiring, training, and supervision, and (3) respondeat superior. On November 18, 2011, the Jacksons amended the original complaint by adding AEG Live Productions, LLC as a named defendant. [2] On March 8, 2012, the court also sustained defendant AEG Live Productions's demurrer to the complaint with leave to amend. On March 26, 2012, the Jacksons filed their amended complaint against AEG and other defendants alleging the same causes of action.[3]

AEG’s Motion for Summary Judgment or in the Alternative, Summary Adjudication

On November 30, 2012, AEG brought a motion for summary judgment or, in the alternative, summary adjudication on the causes of action for negligence, negligent hiring, retention, and supervision, and respondeat superior liability. As to the negligence claim, AEG argued that it did not assume a duty, under either the special relationship or negligent undertaking doctrines, to affirmatively protect Michael from Dr. Murray. AEG was not in a special relationship with Michael and the special relationship alleged by the Jacksons has no factual or legal support. The doctrine of negligent undertaking does not apply because the alleged undertaking is too broad and unsupported by the facts. The claim for negligent undertaking fails because there was no reliance on the undertaking or increased risk of harm. Moreover, the lack of foreseeability further dictates a finding of no duty. As to the negligent hiring, retention, and supervision claim, AEG contended it never hired, trained or supervised Dr. Murray, and AEG could not foresee the risk posed by the doctor. As to respondeat superior liability, AEG argued that Dr. Murray was

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not an employee because no agreement between AEG and Dr. Murray had been executed. And even if an agreement was executed, Dr. Murray was an independent contractor and AEG was therefore not liable.

Defendant Anschutz Entertainment Group and defendant Tim Leiweke moved concurrently for summary judgment in a separate motion based on grounds unique to them, however, they also incorporated by reference AEG’s motion for summary judgment.

The Jacksons’ Opposition

On February 11, 2013, the Jacksons filed an opposition to AEG’s motion for summary judgment, arguing there were triable issues of fact. As to the negligence claim, the Jacksons contended there were facts that there was a special relationship between AEG and Michael because AEG controlled his finances and medical care and because Michael was particularly vulnerable. There was evidence that AEG undertook Michael’s general medical care and specifically the provision of an assistant to Dr. Murray, and negligently performed those tasks. There are facts that AEG created an undue risk of harm to Michael, and foreseeability is a question for the jury. As to the negligent hiring, retention, and supervision claim, the Jacksons argued that there were triable issues of fact as to whether AEG negligently hired Dr. Murray because they had an oral or implied-in-fact agreement with Dr. Murray and should have foreseen the particular risks posed by him. As to respondeat superior liability, the Jacksons further argued that there were triable issues of fact that Dr. Murray was an employee, not an independent contractor. Even if Dr. Murray was an independent contractor as a matter of law, AEG is liable for his negligent conduct because the medical services performed by Dr. Murray are inherently dangerous or involve a peculiar risk.

AEG’s Reply

In its reply filed February 20, 2013, AEG argued that the opposition fails to establish any disputed issues of material fact and is based on inadmissible evidence. AEG contended that there was no special relationship because business dealings cannot establish such a relationship and the Jacksons admitted that Michael continued to see other doctors. AEG also stated that there was no evidence establishing Michael detrimentally relied on the special relationship. AEG further argued that the evidence established that AEG did not undertake to provide a medical assistant to Dr. Murray in Los Angeles. AEG reiterated that it did not hire Dr. Murray and could not foresee the danger he posed. Finally, AEG contended that it did not control the manner or means of Dr. Murray’s work and that all applicable factors show that Dr. Murray was an independent contractor. The Jacksons’ contention that

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Dr. Murray’s work as a physician was inherently dangerous or involved a peculiar risk is contrary to the law.

Trial Court’s Rulings

The trial court heard oral argument on February 25, 2013, and took the motion under submission. On February 27, 2013, the court denied summary judgment but granted summary adjudication as to the negligence and the respondeat superior causes of action. As to the negligence claim, the court held that the Jacksons cited no authority in which financial interactions or financial pressure is sufficient to create a special relationship. Moreover, the Jacksons did not present sufficient evidence to establish that AEG exercised complete control over Michael’s medical welfare. The court further stated there was no negligent undertaking, AEG established that it made no specific undertaking, and that there was no reliance or increased risk of harm. The court found that a general undertaking to provide for “medical care” is too broad and not supported by the case law or facts. Moreover, given Michael’s status and experience, exerting strong financial pressures is insufficient alone to create an undue risk of harm. As to respondeat superior liability, the court concluded that AEG’s evidence established that Dr. Murray was an independent contractor, not an employee, because AEG had no control over the manner and means of Dr. Murray’s work and there was no other basis on which to apply the doctrine of respondeat superior.

On February 28, 2013, the court granted defendant Anschutz Entertainment Group and defendant Leiweke’s motion for summary judgment. The court entered judgment in favor of defendant Anschutz Entertainment Group and defendant Leiweke only. Negligent hiring, retention and supervision was the remaining cause of action that proceeded to trial against AEG.

Trial Proceedings

The trial commenced on April 2, 2013. On July 29, 2013, the Jacksons moved for leave to amend the amended complaint to conform to proof to add a general negligence cause of action. The trial court denied the motion to amend. On September 9, 2013, AEG moved for nonsuit, which was granted only as to defendants Phillips and Gongaware. AEG Live was the sole remaining defendant on the negligent hiring, retention, and supervision cause of action as it commenced the defense.[4] On October 2, 2013, the jury returned a verdict in favor of AEG on the single cause of action, and the

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court entered judgment on November 13, 2013. On January 13, 2014, the court denied the Jacksons’ motion for a new trial. The Jacksons filed a timely notice of appeal.


Dr. Murray was initially referred to Michael by a patient’s son, who was Michael’s security guard. Dr. Murray began treating Michael back in 2006 while he was residing in Las Vegas, but Dr. Murray’s treatment of Michael was intermittent. It was not until spring 2009 that Dr. Murray began treating him on a regular basis at Michael’s Los Angeles residence.

AEG/Dr. Murray Contract

On January 26, 2009, AEG and Michael, on behalf of himself and the Michael Jackson Company, LLC (MJC), entered into an agreement for AEG to produce and promote Michael’s This Is It tour. Under the tour agreement, AEG would advance the costs associated with producing and promoting the tour, as well as advancing substantial sums to the MJC to provide Michael with cash, pay off certain debts, rent his home, and potentially buy a second home. These production advances, advances payable to the MJC, and production costs were to be recouped from Michael’s share of the tour proceeds or, if the tour did not generate sufficient proceeds to cover such advances and costs, repaid by Michael and the MJC. Michael had the right to select his own touring staff. As with all production costs, the salaries of his touring staff were advanced by AEG, but Michael ultimately was responsible for the payments.

In April 2009, Michael’s assistant called Dr. Murray and stated that Michael wanted Dr. Murray to be on tour with him in England. Dr. Murray responded, “Well, I need more details about that, ” and the conversation ended. Shortly thereafter, Dr. Murray got a call from Michael “telling [him] how elated he was that [Dr. Murray] was going to join the trip.”

In late April or early May 2009, Michael told Paul Gongaware, the co-CEO of Concerts West, a division of AEG Live that handles concert tours, he wanted to bring his personal physician Dr. Murray on the tour. Gongaware tried to convince Michael that a London-based physician would be preferable due to logistical and licensing issues. However, Michael insisted on having Dr. Murray. Gongaware recalls Michael specifically stating, “This is what I want. I want Dr. Murray.” After speaking with Michael, Gongaware contacted

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Brandon Phillips, AEG Live’s President and CEO, about Michael’s request. Phillips spoke to Michael, explaining that it made logistical and economic sense to get a physician in London. However, Michael was very firm and indicated that he already selected his touring physician, Dr. Murray, who was his long-term personal physician. Phillips then told Michael he would have Gongaware reach out to Dr. Murray to negotiate, on Michael’s behalf, the best terms for Dr. Murray to join the tour. Gongaware ultimately agreed that AEG would facilitate contract negotiations with Dr. Murray, as it had done for other members of Michael’s touring staff. Michael gave Gongaware Dr. Murray’s telephone number and asked him to contact Dr. Murray.

When Gongaware contacted Dr. Murray in late April or early May 2009, Dr. Murray told him that he already knew Michael intended to bring him on tour. Dr. Murray demanded that he and his company, GCA Holdings, LLC, be paid $5 million for his services because he had to close down four clinics and lay off his employees. After Gongaware told Dr. Murray that figure was unreasonable, Gongaware relayed Dr. Murray’s demand to Michael. Michael directed Gongaware to counteroffer $150, 000 a month. Gongaware followed Michael’s instruction and presented the counteroffer to Dr. Murray as an “offer directly from the artist.” Dr. Murray expressed his willingness to negotiate a contract at that price and told Gongaware that his contract should include a provision for a residence in London close to Michael’s, and he would need some medical equipment and an assistant in London.

At Gongaware’s request, Timm Woolley, an accountant on Michael’s This Is It tour, contacted Dr. Murray on May 8, 2009, to gather preliminary information from him. Woolley understood that Dr. Murray was Michael’s primarily care physician. On the phone and memorialized in an e-mail later that day, Woolley and Dr. Murray discussed contact information, his likely mode of travel and accommodations, his potential need for CPR machines and an assistant in London, potential insurance options, and his fees.

On May 15, 2009, Dr. Murray responded to Woolley by asking him to send a draft of a possible contract for his lawyer’s review. Dr. Murray also stated, “As for good faith with my client I am sure that you are aware that my services are already fully engaged with Mr. Jackson.” On May 28, 2009, Woolley received another e-mail from Dr. Murray, asking for a good faith payment of the fees that ultimately would be due under the planned agreement. Woolley replied the same day to advise him that no payment could be made because “AEG policies dictate that payments can only be made under a fully-executed agreement.” Woolley also stated, “The legal department had not yet completed the agreement which is rather specialised [sic] since it is a rare event that a physician is engaged to accompany a touring artist.”

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Kathie Jorrie, outside legal counsel for AEG, was directed by Woolley to draft a proposed independent contractor agreement that would provide for Dr. Murray to accompany Michael on the tour. Like Woolley, Jorrie understood that Dr. Murray was a physician that Michael had requested and directed AEG to reach out to the doctor to discuss and draft a possible agreement.

On June 15, 2009, Jorrie e-mailed the first draft, which was titled “Independent Contractor Agreement” to Woolley for his review. The next day, Woolley e-mailed Dr. Murray the draft and asked for his “input and comments.” The draft agreement included a condition precedent: the parties would have no rights or obligations to one another unless and until Michael personally signed the agreement, giving his written confirmation that he had requested AEG to engage Dr. Murray, on Michael’s behalf and at Michael’s expense, on the terms set forth therein. This provision was not standard to AEG’s tour contracts and was added because of the unique personal relationship between Michael and Dr. Murray. This provision remained in each subsequent draft.

On June 18, 2009, Dr. Murray called Jorrie to discuss the draft. He advised her that Woolley had sent the draft contract to him and explained that he wanted to make changes to various terms in the draft agreement. Among other things, they discussed who the contracting parties and required signatories would be and whether Dr. Murray would hire someone to assist him in London. Jorrie inquired as to why Dr. Murray needed to have a CPR machine in London and Dr. Murray explained he needed a CPR machine in case of an emergency given Michael’s age and the strenuous performance he would be putting on in London. Dr. Murray told Jorrie this was customary. Dr. Murray made it clear to Jorrie that he wanted the CPR machine and the medical assistant in London, not Los Angeles. However, Dr. Murray never asked for specific equipment to be delivered to him, and he had yet to select a medical assistant. Dr. Murray also assured Jorrie that he was licensed to practice medicine in California, Texas, Nevada and Hawaii.

After speaking with Dr. Murray, Jorrie revised the draft agreement to reflect the various changes and additional issues discussed. On June 19, 2009, Woolley e-mailed the revised version to Dr. Murray for his further review and comment.

On June 23, 2009, Dr. Murray called Jorrie regarding further revisions to the draft contract’s terms, including: (1) changing the contract’s end date from September 30, 2009, to March 6, 2010, so that Dr. Murray would stay on during a break in the tour; (2) changing the payment provisions so ...

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