January 25, 2013 -- Law360
Law360, New York (January 25, 2013, 12:12 PM ET) -- Contemporary theater depends increasingly on the "wow" factor. General audiences are no longer satisfied to see a great performance live without an associated visual spectacle supporting the performer. With that comes increasing danger to actors, dancers, artists, musicians and stage technicians.
Recent accidents involving actors and stagehands, on and off Broadway, attest to this. In Broadway productions of "The Little Mermaid" and "Spider-Man Turn Off the Dark," actors were injured; recently in Las Vegas, a stagehand fell into a two-story loading pit. While automation systems and their integration into equipment and scenery may be developing in complexity, fundamental principles of product liability still apply.
This article details certain "best practices" that may serve to mitigate exposure to liability for the provider or user of an automation system.
Theatrical automation systems consist of a complex assembly of technologies. Generally, they consist of a software component (Graphical User Interface or GUI), with which the motion profiles are created to control an electrical or electronic component that in turn regulates and distributes a power source (electrical, hydraulic and pneumatic) to a mechanical or power transmission device, such as an electric motor or a hydraulic piston.
Provision of electricity itself has been held not to be a product, but software may be.1 While software is found throughout the automation system on embedded controllers in the electronic components, it is the GUI software that is the main focus in limiting product liability exposure. It is here within the GUI that the producer of the show is able to program the cues that manipulate movement of the scene changes and thus set the stage of the producer's final product.
Four general steps create motion with an automation system: First, the commands are entered at the control desk or console. Second, these commands are transmitted from the user interface on the computer to a motion controller, programmable logic controller (PLC) or intelligent drive. Third, the motion controller, PLC or drive converts the motion profile data to an output signal that powers the electromechanical, pneumatic-mechanical or hydromechanical device. Fourth, through the mechanical power transmission equipment is the actual physical movement of the scenery.
In short, the automation system coordinates the necessary information to convert the profile data from the GUI on the operator's computer into actual motion.
The software component has two aspects. First is the executable program provided by the supplier that may be "off the shelf," which may contain the automation system's proprietary elements with regular updates available to all purchases of the program or that may be customized and specifically developed for a particular user.
Second is the user input file created through the use of the executable program, i.e., the cues that are entered. The analogy would be a word processing program, which the user uses to create content in a particular form using the program. This distinction is key when it comes to analyzing fault and cause of the accident, i.e., whether the actual software program is defective or whether it has been negligently used or otherwise misused or whether the resulting set of cues have not been properly executed.
Automation may take one of two basic forms. The first is pure automation, in which a single command is entered and a series of automatic functions proceeds without further human intervention until the task is completed. The second is "teleoperation" or, as more commonly understood, remote control. That is what is common in a stage production, in which an automation operator enters cues as the show progresses.
This is a blend of automatic operation and a human operating machinery, akin to the use of automated systems in telerobotics, where commands are sent by a human operator who cue the commands based on knowledge of the overall performance and needs of the production.
The automation operator uses the automation system's executable program to create the specific cues for the show, which becomes the "show file," and during the show, manually executes each cue based on the organized flow of the production as determined by the producer and recalled or sequenced by the production stage manager. It is the job of the production stage manager to maintain the consistency of the production from show to show by "calling out" the cue sequencing to the stage technical staff in strict correlation to the activities of the performance.
A show file for a single production can have in excess of 400 separate cues, controlling many axes of motion and consisting of multiple motion profiles in any combination of axes. An automation system may support more advanced functionality, such as "auto-follow" (cues that automatically follow another cue after a set length of time); "conditions" (a precursor event that must be met, generally the step before a constraint or an auto-follow cue); "constraints" (an action within the software that is used to restrict or limit another action); or "interlocks" (a function that precludes and can prevent a cue from being executed based on a specified state of the system). A commonly used interlock in a stage automation system is a "light curtain" that, if tripped, prevents movement of the scenery or object.
The producer must balance the levels of operator interaction and the use of the auto-follows, constraints, conditions and interlocks on a case-by-case and show-by-show evaluation in order to safely provide their desired consistency in the final product. These types of delays and automatic movements are not recommended in the abstract.
Particularly for a theatrical production with actors intermingling with a variety of scenic elements, such cued operations could hurt an actor who happens to be in the wrong place at the wrong time. The producer of the show makes choices as to where to place the actors, where to place the consoles and other automation equipment and which cues to use and how they are to be programmed.
It is commonplace within the entertainment industry for all stage employees (actors, artists, musicians, technicians, etc.) to follow the prescribed "blocking" that is taught to them. Like teaching someone to drive a car and follow the rules of the road, stage employees are taught to follow the rules of the production in order to display product and craft to the public.
What is performed in front of the scenery for the audience to see is only a small part of the complexity of the stage – Behind the scenery is a flurry of activity that is executed in strict orchestration and timing.
Product Liability General Principles
A plaintiff injured by an allegedly defective product may seek recovery against the manufacturer on the basis of any one or more of four theories of liability – in contract (warranty), express or implied, negligence and strict product liability. Strict product liability may be established based on a mistake during the manufacturing process, improper design or failure to warn.
Defective design exists when the product leaves the manufacturer in an unreasonably dangerous condition for its intended use, and its utility is not outweighed by the inherent danger. Liability is also dependent upon proximate cause.
An automation supplier may be the direct contractor with the production company and is supplying automation as well as machinery, or it may be a subcontractor to the main scenery producer. It may also be further removed from the production company or supplying only a portion of the automation.
As a general proposition, the fact that a component manufacturer is consulted does not render it liable for a defect in the overall product, provided the component manufacturer does not take on responsibility for repairs or otherwise engage in substantive participation in the design of the final product.
Relatedly, a supplier that follows the designer's specifications generally will not be liable, unless the specifications were obviously defective, or the supplier participated in the formulation or change of the design. When there is a claim that optional safety features should have been utilized, generally, the supplier is not liable if the purchaser declines the supplier, though available or offered, based on its own assessment of needs.
Express warranties are a function of the written or oral statements made and require proof of reliance. In the case of the theater, the actor would generally have no occasion to read the contract or the operating manual that the production company uses as supplied by the automation company.
Implied warranties require proof that the automation system was not reasonably fit for the intended purpose and is a function of its use in a reasonably foreseeable manner.
Regarding a failure to warn, there is no obligation to warn about obvious hazards.
Negligence requires the existence of a duty, satisfaction of a reasonable standard of care relating to the risk of reasonably foreseeable harm and causation.
Finally, even in assessing strict liability, a defense for the supplier is intervening or superseding cause. When the intervening act that causes the accident is the result of someone blatantly ignoring an obvious danger and acting accordingly, the manufacturer will not be liable. In a strict liability context, the alleged defect must be a substantial factor.
Given the reality of the "product" and its use in theater, there remains a need for manual operation. When human intervention is necessary, by definition, it is not possible to "design out" all human error.
There is an oft-repeated slogan that "the best safety device is a careful person."2 In this regard, there are several best practices the automation supplier and end user in the theater industry should consider.
The automation system should accommodate the ability to cue appropriate warnings, with sufficient capability to adjust size, color and other visual impact. The system may also accommodate audio signals.
These features should be clearly explained in the operating manual, and the end user should evaluate all possible warning elements, balancing efficiency with attention overload. Once all options are explained, the contractor should get a written acknowledgement.
The automation system supplier should make sure of its website declarations. While the law permits a certain amount of "puffing," the supplier should make sure that website recitations of capability and scope are consistent with reality.
All contractors involved in a production should stick to their contract and pay attention to the scope of services. Utilize a clear and specific scope of work in the contract. Understanding the reality of life on the set, there will be occasions when the supplier is "on set" and asked a variety of questions.
The supplier's opinion may be sought on something outside the scope of the contract for the automation system as well. While a certain minimum amount of gratuitous advice may not be a problem, there may be an issue of fact created if the supplier becomes (or is perceived to have become) an active participant in design or other safety elements.
Generally speaking, the producer of the show is responsible for the human factors analysis and should provide appropriate information to contractors. Contractors should address safety procedures of their products in writing (particularly in operating manuals) and have a record of instruction where they are given.
It is probably a good idea for contractors – in particular, automation suppliers – to engage in a discussion directly with cast and stagehands, with the production company's safety manager present, to emphasize particular elements of the automation system. The operations manual accompanying an automation system should contain safety recommendations, including the need for operator vigilance.
Even seasoned automation operators may not read the entire operating manual, so make sure that the manual addresses all programming capabilities, such as auto-follows. Have the operators and other relevant persons sign an acknowledgement that they have received the manual and any updates.
Document all complaints about the system and what was done to correct them. The automation supplier should timely request automation logs for the date of any incident as well as for runs of the automation system on immediately preceding and succeeding performances.
The production company, which controls the set, should minimize distraction and operator overload and utilize redundant systems, such as monitors, camera placement and confirmed manual checks. Written checklists for preshow checks may be better than anecdotal or "memory" checks.
When special employees are utilized, they need to have the same information imparted to them and, if possible, such instruction should be confirmed in writing, so there is no question as to the contractor's explanation of the system.
Consult knowledgeable legal professionals in advance at the contract stage.
Theater balances aesthetics and safety. No system can be glitch-free. Automation systems combine mechanical, electrical and software components that interact with each other.
In the world of theater, where cues are entered manually, no redundancy system in the world can protect against the deliberatively inattentive operator. Still, by exercising certain best practices, the hope and intention is that liability may be ameliorated, if not avoided, in many cases.
Steven M. Richman is a partner in the New Jersey and New York offices of Duane Morris. He represented Niscon Inc. in Bailey v. Disney Worldwide Shared Services.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Farina v. Niagara Mohawk Power Corp., 81 A.D.2d 700 (3rd Dep't 1981) (provision of electricity by a power company was not a product sale for purposes of product liability). The issue of whether software is a "good" or a "service," litigated both under the UCC and product liability law, is developing, and other claims–such as breach of warranty and misrepresentation–may also be relevant. For purposes of this article, and without rendering any dispositive conclusion, an automation system is treated as a product.
Among the earliest usages I have found is the Number Fifty-Six issue of the Illinois Steel Company Safety Bulletin, March 1917: "It has been well said that the best safety device is a careful man." I have updated the slogan and made it gender-neutral.