Experimental theater clashes with premises liability law in the case of a Kentucky woman who claims she was injured while watching a performance of a circus-inspired play when one of the actors balanced his knee on her head.

“Lookingglass Alice” by David Catlin has been described as a highly physical and acrobatic adaptation of Lewis Carroll’s “Alice’s Adventures in Wonderland” and “Through the Looking Glass” which, like other experimental pieces, breaks down the traditional boundaries between actor and audience.

“If you sit in the aisles or in the front row, you might entertain an errant actor on your lap,” noted one reviewer.

But Christina Paxton alleges an errant actor — who plays the part of the Mad Hatter, no less — injured her during a performance of “Lookingglass Alice” at the Actors Theatre of Louisville on Sept. 9, 2009.

Actor Samuel Taylor “climbed onto the seat that the Plaintiff was seated in and balanced his knee on her head as part of the play, causing the Plaintiff to be injured in and about her body,” she says in a complaint filed last week.

The suit does not identify the injuries or where exactly Paxton was seated at the time of her encounter with Taylor. But it does raise the issue of whether experimental theater performers should be given some margin of protection from negligence claims — or whether audience members should be given some margin of protection from performers.

In a similar case, a Los Angeles man sued the Blue Man Group theatrical act in 2008 for shoving a camera down his throat during the “Esophagus Video” portion of its show. The Blue Man Group negligently “failed to warn patrons ... of dangerous interactive stunts with the audience,” James Srodon alleged in his suit, which is still pending.

One Los Angeles attorney who represents theatrical producers has recommended that “care must be taken to select audience participants who indicate their willingness to join in the show, and to be alert to signs that the audience participant may be embarrassed, upset or angered by the events as they unfold.”

“Audience members should be asked whether they consent to participate, and given a meaningful opportunity to decline,” Gordon P. Firemark said on his blog. “Ultimately, the performers should take 'no' for an answer.”

In “Lookingglass Alice,” Alice, the White Rabbit, Queen of Hearts, Mad Hatter and other familiar characters from the Carroll stories tumble with unicycles, swing on bungees and do other circus tricks while traveling through Wonderland. “Physicality is not necessarily more important than the words of the script,” writer Catlin has said. “But it is an equally powerful tool.”

Leo Weekly, an alternative Louisville newspaper, reported that “in this production you may end up sitting on the stage — the reveal of the 'other audience' as Alice climbs through the mirror is as dramatic for the folks in the seats as it was for Alice in the story.”

In her barebones complaint, Paxton says only that she was “on the premises” of Actors Theatre and the negligence of the theatre and Taylor was the proximate cause of her injuries. She is also suing Taylor for assault and battery.

The danger of such a case is that it will chill the creativity of avant-garde performers. On the other hand, should the audience at an experimental performance assume the risk of injury from interaction with an actor in the same way that spectators at a baseball game assume the risk of being injured by a foul ball?

By Matthew Heller
8/30/10