Theatre Design & Technology - Spring 1976 - 24

ARE YOU PROTECTED?
BRIAN P. LAGO

YALE SCHOOL OF DRAMA
©1976 By Brian P. Lago

Recently, I signed a contract with an undergraduate
theatre group, at a large East coast university. As technical
advisor, I was to oversee the planning and production of
the organization's shows. Since it was my first formal
employment, I felt it important to maintain a clean rep·
utation. The last thing I wanted was a suit against myself, or the university. The thought of a law-suit dredged
up memories of my own undergraduate school.
In my undergraduate years, in the S.U.N.Y. system,
two lawsuits were brought against my drama department.
One was on behalf of a local boy (trespassing), who fell
down a stage elevator shaft after a maintenance crew
failed to close the door to the lift from the traproom.
The other was for a student who fell through a trapdoor
in a raked stage platform. In both suits, members of the
department (the chairman and the technical director)
were named as defendants with the college as target
risk. Neither the chairman nor the technical director
felt concerned about the outcome of the suits (both
were settled in favor of the injured parties), since they
were employed by the university, which they believed
would naturally cover their liability.
This in not an unusual belief, but it is an uninformed
one. For many years, faculty and other supervisory personnel at colleges and universities throughout the country have assumed an immunity from personal liability
for accidents occurring under their supervision. The logic
for this assumed immunity has been based upon two
ideas: 1. The intelligence of students was assumed to be
at such a level that they could foresee many of their own
accidents, and thus avoid them. 2. The legislative theory
of sovereign and charitable institutions implies that a
state cannot be sued without its own consent. Since
universities are accepted as instruments of the state,
or as charitable institutions, their immunity is generally
recognized unless there is legislation to the contrary. This
doctrine though, does not necessarily imply the immunity
of the officers, faculty, or employees. In most jurisdictions, the immunity is all encompassing if it can be shown
that the defendant was performing his duties in a proper
manner for the maintenance of the university and its
student body. In other jurisdictions, however, it has
been decided that doctors of a university infirmary may
be liable for malpractice. The crux of this dilemma has
been the phrase, "for acts performed as part of their
duties." The definition of "duties" is growing to suit
more sophisticated equipment, larger classes, and the
resulting need for more supervision. The basic trend in
the redefinition of this subject is towards the elimination
of faculty immunity.
There is no cause for immediate panic. You are not
being sued, but it shoul~ be clear, that you are not necessarily protected against a lawsuit. Even if a suit is
brought against you, it has to be proven that you are

SPRING,1976

at fault and thus can be charged with negligence. The
definition of negligence is within itself changing. Originally, it was believed to be the "failure to do what a
reasonable and prudent person would ordinarily have
done under the same circumstances of the situation."
The problem with this phrase has been a definition of
"reasonable and prudent." A student may be reasonable
and prudent, but still in danger when using a table saw
for the first time. If the hazard of the saw is not recognized, the student may not ask for help. In general, the
interpretation is heading towards a total vision of the
hazard. This means that where originally foresight was
required in a discussion of negligence, the courts are now
tending to state that aftervision is an integral part of foresight. As an example, let me refer back to my undergraduate drama department. In the case of the trespassing
child, the maintenance crew left a door open. As aftervision, they stated that if they had known the child
was in the building, they would have closed the door.
The court's feeling was that they should have assumed
the possibility, recognized the hazard, and closed the
door.
Certainly, one may question the degree of foresight
and aftervision required to constitute reasonable care.
The courts generally feel that it is based upon two aspects.
1. The Probability of Injury: When someone uses a hot
melt glue gun for the first time, they are bound to get a
few small burns. This should be foreseen, and measures
taken. 2. The Extent of Injuries: If you have someone
using a hot melt glue gun and someone using a wood
lathe, realize the differences in the potential hazards.
As an example, I will refer to the second accident at my
undergraduate school. The technical director warned
the girl about the open trap. As he recognized the hazard,
he should have eliminated it by covering the trap. Furthermore, after he warned her, he left the stage to meet with
a student. Onstage, the crew was exchanging a pipe from
one line set to another. The size of the crew and the
degree of potential hazard onstage should have been
recognized, and proper supervision maintained. In this
case, the technical director was only charged as the
defendant with the college as target risk. If he had been
charged as a co-defendant with the college, he could
have been held negligent and found to be liable. At the
time of th is accident, there were also people in the shop
operating the various power saws. If they had been injured, the same could have been the case.
Does this mean that you must watch every crew,
every crew member, and every task that they do? Basically, yes! You must see to it that they are fully trained,
all hazards eliminated, and correct practices maintained.
At this point you are no doubt wondering how to
eliminate hazards. An excellent first step is a tour of
your facilities by safety officials, and the adoption of

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