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Lawrenceville, GA— Attorneys Tuesday sparred over what caused a stuntman’s 2017 death while filming an episode of The Walking Dead, as trial opened against AMC Networks and others responsible for filming the TV series. Bernecker v. Stawlwart Films LLC, et al., 18-C-00435.
John Bernecker, 33, died in a 20-plus-foot fall from a balcony while filming a fight scene for the The Walking Dead, a series about a group navigating a zombie apocalypse. Bernecker’s family contends a lack of appropriate safety measures, combined with another actor’s mistake during the scene, caused Bernecker to miss his mark on a 10 x 10-foot safety pad, catcher system and hit the ground underneath the balcony.
During Tuesday’s openings, Harris Lowry Manton’s Jeffrey Harris told jurors the production company responsible for the episode, Stalwart Films, did not have appropriate personnel to ensure the scene was safe and used a catcher system too small for the stunt.
Harris walked jurors through the stunt, noting that, just before performing the fall, Benecker, a veteran stuntman with credits that include work on The Avengers and Black Panther, directed the pad’s position be adjusted. “You’re going to hear expert testimony from two stunt coordinators that that right there should have [raised] an alarm. Because there’s no reason why the stunt performer should be moving a very small target,” Harris said. “There ought to be a big enough safety net where the stunt performer is not worried about moving these small pads around to hit them.”
Harris said that Bernecker’s anticipated fall path was changed when actor Austin Amelio unexpectedly made contact with him during the scene. “You’ve got to anticipate stuff like that,” Harris said. “You’ve got to plan for the fact that the actor might make a mistake, and make sure the catcher system is big enough that nothing bad happens.”
Nonetheless, Harris said the fatal accident could have been avoided if Stalwart had simply added safety boxes to protect Bernecker. “For $100, [John Bernecker] doesn’t die,” Harris said. “Because you have enough boxes to protect him.”
However, the defense contends that the production employed appropriate safety measures but Benecker did not perform the stunt as scripted.
During Tuesday’s openings, Weinberg Wheeler Hudgins Gunn & Dial’s David Dial told jurors the catcher system was appropriately sized for the stunt. He added that Bernecker never requested additional safety equipment and that the crew placed the safety pad exactly where Bernecker directed. “He had the right, if he felt uncomfortable with the size of that catcher system, to ask for a bigger one,” Dial said. “He had the absolute right to locate where that catcher system would be placed, and he did that in this instance. And he did not ask that that catcher system be put farther under the balcony.”
Dial also challenged the contention that Amelio ever came in contact with Bernecker, noting Amelio himself claims he never touched the stuntman, despite video appearing to show the two come in contact as part of the fight scene. “Of course the video looks like he touched John Bernecker,” Dial said. “It was supposed to look like he touched John Bernecker.”
Instead, Dial told jurors experts would testify that Bernecker himself changed the fall path, when he unexpectedly grabbed the balcony railing, which Dials said swung him under the balcony. “He missed the catcher pad because he continued to grasp the railing,” Dial said.
And regardless of what caused the accident, Dial added that Benercker was an employee of Stalwart when performing the stunt, which limits the family’s recovery to a workers’ compensation claim under Georgia law. Dial noted contract documents referring repeatedly to employees and employment. By contrast, he said, “There is... not a single reference to a stunt performer being an independent contractor.”
However, Harris countered that payment and other forms would prove that Bernecker was an independent contractor on the stunt, allowing his family to recover in a personal injury action. Harris pointed to Benercker’s scheduled one day of work on the set, as well as tax reporting made through 1099 forms, typically given to independent contractors. “The evidence will be overwhelming that John was an independent contractor,” Harris said.
Trial in the case is expected to run through next week.
Email Arlin Crisco at acrisco@cvn.com.
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