A Fictional Shot – Real Consequences. On Criminal Liability for Fatal Accidents on Film Sets

Film production often involves the necessity of performing actions that carry an increased risk to the life and health of those engaged in making the film. This is particularly the case with stunt scenes and when pyrotechnics, explosives, or firearms are used on set. From time to time, due to technical malfunctions, failures in safety measures, or simple human error, fatal accidents occur on film sets. In such instances, questions inevitably arise about who may bear criminal liability and under what principles.

The “Rust” Tragedy

On October 21, 2021, the film industry was shaken by news of a tragedy on the set of the western Rust. During rehearsal for one of the scenes, lead actor Alec Baldwin fatally shot cinematographer Halyna Hutchins and injured director Joel Souza. When pulling the trigger, the actor was unaware that the revolver handed to him by the on-set armorer had been loaded with live ammunition instead of blanks.

The tragic example of the Rust accident provides a valuable starting point for analyzing the principles of criminal liability for such incidents under Polish law.

Criminal Liability for Manslaughter under Polish Criminal Law

In the Polish legal system, criminal liability for causing a fatal accident on a film set is regulated by the provisions of the Criminal Code. The key provision in this respect is Article 155 of the Criminal Code, which stipulates: “Whoever unintentionally causes the death of a human being is subject to imprisonment for a term of between 3 months and 5 years”.

The essence of liability under this provision is the unintentional nature of the perpetrator’s behavior. This means that the perpetrator, without intending to cause a fatal accident, does so due to failing to observe the standard of caution required under the circumstances. A further condition for liability is that the death must have been an objectively foreseeable consequence of the perpetrator’s act or omission.

Importantly, the element of “causing” death must be understood broadly. It encompasses not only the conduct of the direct perpetrator but also the acts or omissions of other persons that are objectively causally linked to the fatal outcome. This implies that if an accident similar to the one on the set of Rust occurred in Poland, criminal liability could potentially extend to several individuals.

Liability of the Actor

First, one would need to consider the criminal liability of the direct perpetrator – in this case, the actor who fired the fatal shot. Assuming that the script called for firing in the direction of another person, the weapon was prepared and handed to the actor by a professional, and the actor himself lacked specialized firearms training, likely, he would not be held criminally liable for manslaughter. Given the circumstances, the actor could have reasonably relied on the professionals responsible for technical operations on set to equip him with a prop enabling the safe performance of the scene, which had been organized in a way that should not pose a risk to third parties. If the actor followed the script and instructions, it would be difficult to argue that he breached a duty of care or that the fatal consequence was objectively foreseeable from his conduct.

The assessment would differ, however, if the actor possessed specialized firearms expertise (e.g., a firearms license or prior military service). In such a case, the standard of care expected of him in handling a weapon would be higher than that of an average citizen. His failure to verify the type of ammunition or ensure the possibility of safely discharging the weapon could be treated as a breach of the duty of care, thereby imputing criminal liability to him. A comparable situation occurred on the set of the Polish film Czerwony Punkt directed by Patryk Vega. In 2016, a former GROM soldier playing the role of a sniper unintentionally used live ammunition and shot the director of photography in the leg, causing a severe femoral fracture. In that case, the shooter was lawfully convicted of unintentionally causing grievous bodily harm.

Liability of Firearms Specialists on Set

Second, criminal liability for manslaughter could attach to the armorer or specialist responsible for preparing and handling firearms on set. There can be no doubt that mistakenly loading a gun with live ammunition and allowing it to be used during filming constitutes a grave breach of the duty of care expected of a professional in this field. Furthermore, from such a person’s perspective, the fatal consequences of improper conduct – namely, the death of crew members – are objectively foreseeable.

Liability of the Film Producer and the Health & Safety Coordinator

Third, criminal liability could also extend to the film producer and the occupational health and safety (OHS) coordinator on set. Under the Minister of Culture and National Heritage Regulation of March 15, 2011, on health and safety in film production, the producer must ensure safe and hygienic working conditions for all individuals involved in the production. For this purpose, together with the employers of those participating in the production, the producer must designate a health and safety coordinator at least 14 days before filming commences. The coordinator oversees the health and safety of all participants in the production.

In light of these regulations, both the producer and the OHS coordinator may be considered guarantors of safety, bearing a specific legal duty to prevent adverse consequences to the life and health of persons engaged in the film production. Their criminal liability for a fatal accident on set may arise particularly where they unjustifiably failed to take measures necessary to prevent death, in circumstances where such an outcome was foreseeable. In the factual scenario analyzed, such a failure could include, for instance, disregarding the absence of a qualified armorer during the shooting of scenes involving firearms.

Measures to Mitigate the Risk of Fatal Accidents on Film Sets

The examples above illustrate that criminal liability for fatal accidents on film sets is a complex issue requiring consideration of multiple factors, such as the perpetrator’s state of awareness, the scope of their duties, and the specific circumstances of the incident. Although accidents on film sets are inherently difficult to predict, their risk can be mitigated by ensuring adequate supervision over compliance with safety procedures and by employing qualified specialists in those areas of production that pose potential risks to the safety of cast and crew.