Did Producer Strike Photographer on Set of “Donovan”?

Court Addresses Viability of Battery Claim

Sherwood Martinelli alleged that, during the course of filming the show "Ray Donovan," Liev Schreiber intentionally struck him, making contact with his person and destroying personal property. The first cause of action alleged that Showtime Networks Inc. and The Mark Gordon Company d/b/a Entertainment One failed to supervise with reasonable care, was negligent in its hiring of Schreiber, and failed to take any precautions to prevent an attack. The second cause of action alleged that he intentionally struck Martinelli and destroyed personal property.

Martinelli moved for summary judgment on the battery cause of action. He asserted that, at the time of the incident, he was lawfully on a public sidewalk on Lydecker Street, in Nyack, New York, in an area which was beyond the set. He alleged that Schreiber became infuriated with him and yelled at him to get out of his line of sight prior to shooting a scene, and that Schreiber became increasingly infuriated and then, without provocation, charged Martinelli in an aggressive and threatening manner, "while ducking and weaving, like a prize fighter, ultimately striking [him] with [his] upper body while swinging to knock [his] camera."

Martinelli stated that Schreiber struck his right shoulder and camera, causing the camera to be knocked out of his left hand, which was attached by a strap on his right shoulder-while contemporaneously screaming and berating Martinelli to "get the f… of my light of sight." Martinelli asserted that he had established a prima facie case of battery in that Schreiber charged at him in an aggressive manner while making physical contact, and that Showtime and Entertainment One were vicariously liable for Schreiber’s actions.

In opposition to the summary judgment motion, Schreiber/Showtime/Entertainment One submitted the parties' testimony as well as affidavits from Tracy Phillips-Boone, a Wardrobe Supervisor on set, and Michael Downey, Assistant Unit Production manager, both of whom claimed to have witnessed the occurrence.

Schreiber and the witnesses submitted that Martinelli, who had been frequently on the set and disruptive to production, raised his camera to Schreiber's face and began taking pictures of him. Schreiber requested that he remove the camera and Martinelli refused. Schreiber submitted that he moved the camera away from his face and no contact was made with Martinelli at any time.

Schreiber/Showtime/Entertainment One also asserted that no verbal threats were made to Martinelli and argued that summary judgment must be denied as there was overwhelming evidence showing that a battery did not occur between Schreiber and Martinelli. They noted that the criminal case for harassment was dismissed against him.

The elements of a cause of action to recover damages for battery are bodily contact, made with intent, and offensive in nature. The intent required for battery is intent to cause a bodily contact that a reasonable person would find offensive. But there is no requirement that the contact be intended to cause harm. Given the divergent versions of the occurrence, the Court found that there were triable issues of fact as to whether Schreiber struck Martinelli and, if so, whether the touching was intentional and offensive.

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