Wednesday, June 20, 2018

Who pays? Liability when exhibited items are damaged

This is about the LEARNING POINTS arising from the £99,000 claim for damages that a couple in Kansas were presented with - after their five year old broke a sculpture.

the aftermath and the start of the inquest
footage from the community centre's surveillance camera
Yesterday, I posed the following question on Facebook
On the one hand, the parents are "outraged" by the prospect of a bill £99,000 ($132,000) for their child pulling at / knocking off and breaking a sculpture.

On the other hand, what about the artist who has just had an unsupervised child deprive them of the prospect of the proceeds from selling the artwork?

So should children be allowed anywhere near artworks which are valuable?
Or should galleries do better at protecting valuable art?
Are bills for damages the solution? Would your insurance cover you?

P.S. Who says the artwork is worth £99,000?
As you might expect lots of people had lots of opinions - and there were lots of useful learning points which I said I'd summarise in a blog post.

However first here's the unexpurgated Surveillance Video of the incident at the Tomahawk Ridge Community Center in Overland Park, Kansas.



My take on this, based on comments made elsewhere by the mother and others is that:

  • THIS IS NOT AN ART GALLERY - it's a Community Centre
  • the boy who toppled the sculpture is five years old.
  • the children were attending a wedding reception at the centre with their parents
    • the parents were saying goodbye to the happy couple when their children decided to take a wander
    • the children were very clearly not being actively supervised by a parent - and were in effect doing what they fancied
    • the adults present were also not supervising their behaviour in the absence of the parents
  • the women sitting down are unrelated to the children - as in we don't normally see ladies in shorts at wedding receptions! I think the woman walked over because the child started to cry

The Issues this incident raises


So what are the issues raised by this incident. The ones we identified yesterday include the following. You may have other suggestions and do feel free to comment
  1. Value - Who can say what an item is worth for the purposes of reimbursement?
  2. Health and Safety - Do all venues owe a vicarious liability for the health and safety of third parties visiting the venue?
  3. Parental Responsibility - what is a parent liable for if their children are not properly supervised?  Is it an accident when parents have been negligent in their duties?
  4. Insurance - Who is liable? Who pays at the end of the day?
  5. Consignment paperwork - What does paperwork need to make clear?
So I'll expand on each of these points below. Please note I'm not a lawyer and this is based on reading around and experience and does not constitute legal advice.

Value

My understanding is that the artist claims that this sculpture is valued - by him - at $132,000 or £99,000.  However I can find no record of a website for the artist and no reference to him at all online by art galleries or similar. Which is very odd for an artist who is claiming his artwork is worth so much.

He indicated that he valued it based on the hours of work involved and the material used. However that is not and never has been a basis for value. Value is only what it is worth in the marketplace i.e. would the artist actually be able to realise that value.

The issues arising from this are as follows:
  • an artist can claim an artwork is valued at any figure they like BUT an insurance company will take a different perspective.  They are interested in FACTS not hypotheticals.
  • insurance claims are usually based on verifiable and independent evidence of what a piece is worth. In this instance I'd expect the insurance company to seek evidence that the artist has:
    • made equivalent sculptures before of a similar value
    • sold such sculptures for similar values
    • has the paperwork to prove it

Further questions that arise are:
  • Did the community centre knew its value when they put it on display?
  • Would a sculpture of this value be placed in an unsupervised space within a community centre - and not be secured?

Learning Point:  


If you as an artist want to make a claim for damage to your artwork, you need to be able to substantiate/verify the value to an independent assessor - and that usually means being able to provide paperwork for SOLD artwork of a similar size and media

In other words you need to evidence that your valuation of your artwork is not spurious.  Otherwise we could all make a lot of money from valuing our damaged artwork for any figure we like.

Health and Safety


Most such places in the UK would be required to have and show a Health and Safety Certificate for their premises. (I'm assuming the same is true in the USA) 

That in turn SHOULD mean they have proper policies and processes in place which spell out what they should/must do in specific circumstances to maintain their status as a safe place for community events (eg art exhibitions) involving the public.

The sculpture on loan was made from glass - which does rather suggest there should have been some consideration given to health and safety by SOMEBODY!  It should be normal to perform a risk assessment of some kind to ascertain the best method of display.

Frankly I am frequently amazed at the way sculpture is displayed in venues. It's not secured in any way and some of it is very fragile or capable of causing an injury if knocked off a plinth accidentally.

Learning Point


Everybody has a part to play in the maintenance of health and safety. The health and safety of the public is the responsibility of the artist and the venue - and parents if their unsupervised children cause damage to others.

Parental Responsibility


Should children be allowed into art galleries?  Many commented to the effect that they took their children to galleries when small, but 'trained' them to look but not touch.

However who remembers this incident at Tate Modern - Horrified art lovers watch as children climb all over $10m work of modern art at the Tate Modern

Should children be allowed anywhere unsupervised where they can come to harm?

Is it an accident if parents have been negligent?  I seem to recall that numerous parents have found out that they are in fact responsible for the actions of their children.  However it's difficult to find articles which substantiate this in law.

I found one article online about Parental Liability Basics ( relevant to the USA) which indicated that
Parental liability is the term used to refer to a parent's obligation to pay for damage caused by negligent, intentional, or criminal acts committed by the parent's child. Parental liability usually ends when the child reaches the age of majority and doesn't begin until the child reaches 8 to 10 years old. Today, most states have laws relating to parental liability in various applications.
Children's offenses can be civil or criminal in nature. Civil cases are lawsuits brought by a person for money damages. Criminal cases, on the other hand, are brought by the government for violations of criminal law. Many acts can trigger both civil and criminal legal repercussions.
Civil Parental Liability
In most states, parents are responsible for all malicious or willful property damage done by their children. This is called civil parental liability because it’s non-criminal. The parent is obligated only to financially compensate the party harmed by his or her child's actions.

So the issue in this case would appear to be
  • Is there any Civil Parental Liability for the actions of a five year old?
  • Do those liabilities attach to the parents of an unsupervised five year old?
I don't know the answers

My own personal view is that 
  • art galleries are not playgrounds - and should never be treated as such. Gallery staff are certainly not "in loco parentis"
  • community centres are not art galleries - and should be safe places for children
  • responsible adults cannot be assumed to stand "in loco parentis" - although they might act to stop a child harming themselves
  • The parent of any child who comes to harm due to negligent supervision by an appropriate adult/parent would have some difficulty suing a venue or facility if the harm was mainly due to the lack of supervision.

Insurance


The issue of insurance is complicated by the issues of:
  • liability for damage to the artwork
  • liability for the health and safety of the public

Insurance for the artwork


Not all venues, art societies or art galleries accept liability for providing insurance for the artwork - and you, as an artist, need to be very clear if this is the case.

If an art gallery is to accept liability and insure appropriately, they must know the proper value of the artwork - and this needs to be declared by the artist.  If this is inflated the gallery may well decline to exhibit the artwork.

I cannot help but think the community centre might have been wholly unaware of the claimed value given the way it was situated and not secured.

Learning Point


Insurance for the artwork is dictated by the agreement between the organisation/venue and the artist as to who is liable in the event of any damage. (see Consignment Paperwork below)

Insurance for third party liability


Anybody showing any artwork anywhere should be sure that the artwork will not be a source of risk or danger to the health and safety of those viewing it.

In this incident, the sculpture was made of glass. Some of us are wondering how on earth the child escaped any damage from breaking glass when he toppled the sculpture - which was not secured to the mount or fixed in some way so that it could not topple.

The venue is equally liable for making sure that the artwork is safe. Many will seek a written and signed commitment from an artist to this effect.

Venues who have public on their premises owe them a vicarious liability to keep them safe.

In this instance, one wonders whether the story would have been very different if the child had suffered any damage when the sculpture toppled - and who was responsible for the liability towards the health and safety of third parties in a public place.

Learning Point

All venues exhibiting art to the public MUST have insurance for their liability to third parties for any damage suffered while on their premises. How that insurance works depends on:
  • which country you are in and what your local law states
  • any local regulations / laws which are also relevant

Consignment Paperwork


Anytime you could consign artwork to a place of exhibition (of whatever kind) you should make sure that both you and the venue have paperwork which stipulates:
  • How the artwork will be displayed eg if your frame splits when mirror plates are screwed in and you were told to make sure that a wooden frame could accept mirror plates then 
  • Who is responsible for any damages to the artwork while at the venue - very many venues indicate that while they will make the best of endeavours, that they are not liable for any damage to an artwork while it is in their keeping. That might not be very fair but that's the way it is. 
  • Who is responsible for insurance You will find that very many organisations and/or venues insist that the artist insure the artwork before it can be displayed. If that were the case in this instance, then the artist would be seeking to make a claim against his own insurance policy.

I'd be interested to know in this instance:
  • what the consignment paperwork said about liability for damages and insurance of the paperwork
  • whether or not the community centre or the artist had the artwork insured

Learning Point


ALWAYS make sure you know whether who is responsible for responsible for the insurance of your artwork while on display at a venue

More about Insurance


I'll be adding this Case Study into the section on Insurance for Art and Artists on my website Art Business Info for Artists

I'd be very interested to hear of any other relevant case studies which are worth sharing with artists so as to better inform their actions in the future with regard to the display - and insurance - of their artwork.

2 comments:


  1. Thank you for taking a more logical approach to this issue. You have outlined many interesting factors that I did not see in the general news - for example who determines the value of the sculpture. It's my understanding that the insurance company was demanding 99,000 from the parents, is it possible the insurance company was willing to pay the amount to the artist based solely on what the artist paid for the premium?

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  2. I was hoping to see more of your comments on the video, regarding the child. It did not look to me as if the children were simply running and the "vibration" or "wind from movement" or anything was the reason for the topple. Instead, it looked as if the child intentionally pulled the sculpture towards him and then managed to get enough out of the way to avoid falling under it.
    This intention makes the problem more complicated in my mind. I am NOT suggesting that it is all the child's fault. The sculpture looks a bit top-heavy and should have an adequate base to counter that or been more secured to the pedestal. [However, if the latter happened, would the pedestal have toppled WITH the sculpture?].
    I feel that if the parents are not liable for something, then the law sends out the dangerous message that we are not responsible for our own actions. Would that child have done that with his parents in the same room... next to him even?
    And, yes, agree: The glass sculpture does not appear to have broken. Did it chip? If not completely destroyed in the fall, why pay all of the value [whatever that legally is]?
    Liability is such a complicated issue. Community centers often do not have resources to pay for insurance, which can be high for works of art. I hate to discourage anyone from hosting an exhibition for that reason. Artists rarely pay for insurance because we just cannot. Galleries, on the other hand, are in business and take a hefty fee [esp. for sculpture since the costs of labor are so much higher than for 2-d works]. Galleries rarely BUY inventory. They may have paperwork telling artists that we are liable, but ... why? we have the overhead of production costs, including real estate. They have normal business expenses, except inventory! My experiences have been that galleries break [or "lose"] art or damage frames, etc. and sometimes never even apologize, much less compensate. But... another topic from this thread.
    However, my main point is that this case seems to be a shared responsibility of damages. If the community center asked the artists to install the show, then my vote is that the costs of damages or loss must be shared between artist, center, and child [in this case, his legal guardians/family], perhaps equally, or perhaps a wee bit more for the parents. That may suck for them, but if this child is left on his own a lot, it may be that he has never learned respect... he may be a little terror... hahah.. but also, in the end, the sculpture did not fall on its own. It was intentionally pulled down. If we as a society decide that the exhibitors are wholly responsible for the ABILITY for this to happen, we are creating or I daresay, continuing this problem today of people not feeling responsible or liable for their own actions. I would not want to encourage this young "vandal."
    It seems to me the most respectful thing to have happened is that the parent(s) offer to pay for something and the artist and community center allow that and fix what they can on their end. The three should have had a conversation. I am not sure that this sort of thing was handled very well. If so, the parents would not have been shocked by the bill.

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