## Facts

- Shalene Shimer was a Bowling Green State University (BGSU) student and music major who performed as a chorus member in a university theatre production at the Eva Marie Saint Theater.
- After the final performance on April 27, 1996, Shimer was expected to help “strike the set,” meaning to dismantle and remove scenery, equipment, and props from the stage.
- Shimer had not participated in a strike before that night and worked under the direction of the production’s technical director; testimony indicated a theatre-department practice that performers participate in the strike.
- The theater’s orchestra pit could be configured using removable platform sections stored beneath the stage. For the production, part of the pit was filled in and covered with platforms to extend the stage, while about one-third of the pit remained open.
- At about 12:45 a.m. on April 28, 1996, Shimer fell backward from the stage into the open portion of the orchestra pit and was injured.
- Shimer testified that she heard a “heads up” warning, looked upward toward scenery being lowered, and instinctively stepped backward, which led to her fall into the pit.
- Shimer sued BGSU in the Ohio Court of Claims, alleging negligence based on BGSU’s failure to cover or otherwise protect against the open orchestra pit, and asserted negligence per se based on alleged violations of the Ohio Basic Building Code (OBBC).
- The case proceeded to a bench trial on liability only.

## Issues

1. Did BGSU’s orchestra-pit configuration violate the Ohio Basic Building Code in a way that supports negligence per se?
2. Did Shimer prove by a preponderance of the evidence that BGSU breached a duty of ordinary care, and that any breach proximately caused her injuries, by leaving part of the orchestra pit open during the strike?

## Decision

- The Court of Claims entered judgment for BGSU on liability.
- The court rejected Shimer’s negligence-per-se theory because she did not establish an applicable OBBC provision that was violated under the circumstances, and did not show that any claimed code violation caused the fall.
- The court concluded Shimer did not prove common-law negligence because the evidence did not show that leaving the pit partially open during the strike was an unreasonable condition or that BGSU failed to use ordinary care.
- The court treated the open portion of the pit as a normal feature of the stage configuration for the production and strike work and not a hidden hazard on this record.
- The court found the proof of causation lacking where Shimer fell after responding to a warning, looking up, and stepping backward.

## Legal Principles

- To recover for negligence, a plaintiff must prove duty, breach, and proximate cause by a preponderance of the evidence.
- Negligence per se requires proof that a statute or regulation applies, that it was violated, and that the violation proximately caused the injury; absent that showing, breach is not established as a matter of law.
- A premises owner or operator owes lawful entrants a duty of ordinary care to maintain reasonably safe conditions, but that duty does not require guarding or warning against conditions that are open and obvious to a reasonable person in the plaintiff’s position.
- Proximate cause requires a causal connection between the defendant’s act or omission and the injury; if the evidence shows the plaintiff’s movement or inattention explains the accident more than any unsafe condition created by the defendant, liability is not proven.

## Conclusion

The Court of Claims of Ohio held BGSU not liable for Shimer’s fall into a partially open orchestra pit during post-performance strike work because Shimer did not prove an applicable Ohio Basic Building Code violation to support negligence per se and did not carry her burden to show that BGSU failed to use ordinary care or that any act or omission by BGSU proximately caused her injuries.


Shimer v. Bowling Green State University, 708 N.E.2d 305, 96 Ohio Misc. 2d 12 (1999)