Liability

[Doug Nelson]

Bonding was mentioned in another thread (by me) and it got me to wondering about liability. Due to the nature of restoration, we deal with essentially irreplaceable materials. What steps do you take to protect yourself, and reassure your customers?

Do you have a liability waiver or agreement you require a signature for?

We have a lot of moonlighting restorers here, I wonder if we have any that are lawyers during the day

[DJ Dubovsky]

I know with the frequency of lawsuits in this country, I am probably playing with fire but so far I haven't done anything about insuring myself against a lawsuit. That is definately something to consider. I guess I was hesitant because it also would scare me if someone asked me to sign a waiver against something I cherished.

One of the first clients I had came to me because she was an interior designer who was having these very old wedding portraits framed for her client. Her husband accidently got water on them and they were destroyed. She was in tears when she called me. I restored them but to this day I wonder how she handled that one because even the best restoration can not equal the original. For one thing, you can't even get that kind of photo paper anymore. I remember thinking what I would do if I were in her shoes. God I hope I never am.

Good point to ponder Doug. Do you take any precautions since many of your clients send their photos to you?

DJ

[thomasgeorge]

Dj and Doug, Thus far I have not felt the necessity to purchase insurance although it would probably be a good idea owing to the current ideology of " sue now and retire". I keep ALL photos and negatives in a fire resistant and waterproof safe or lockbox until picked up by the customer with their order, and on occasion, I will scan the original while the customer waits and send the original HOME WITH THEM. (THAT's my favorite way of handling that issue! Its hard to mess 'em up when you dont have 'em! )Additionally I provide a suitable archival storage sleeve of buffered paper for the customer to store said item in and when I store a customers photo/negative it goes into the sleeve and lockup IMMEDIATLY AFTER SCANNING before ANYTHING ELSE gets done. Also, NO liquids in the work area. Thus far these steps have kept me out of trouble,although there is always tomorrow. Tom

[Doug Nelson]

Right now all I do is tell the customer what steps I believe are necessary for shipping (see the shipping thread) and put that part on their shoulders. Plus I do all that stuff myself.

But, I'm hoping maybe someone has a release, or maybe we can piece one together here.

My household insurance probably covers damage from fire, etc., (I work out of my home) but I still don't have a clue about bonding.

As I said, I HAVE gotten some flack over it, and figured it wouldn't hurt anything to have whatever assurances available listed on the website.

[Chris W.]

Well everyone has me thinking now as well... it would be a good idea to have some type of release signed. Does anyone know what the portrait stuidos or larger film processing places do? I know in Austin, TX there's a couple of places and I'll try to see if I can find out how they handle it.

[Ed_L]

Interesting subject. It would be my own opinion (but I'm not a lawyer) that personal sentimental value could probably not be recovered unless there was also some historical or other real value to the print in question. It would be interesting to see how the courts would rule on something like this. If any of you have a personal or business lawyer, that might be a good question to bring up. I have a nephew who is a personal injury lawyer in another locale, and I'm rarely in contact with him. If I do get the chance, I'll ask him his opinion on this, but I'm not sure he'll have an answer since that is not his line of work.

Ed

[thomasgeorge]

Ed, good points. I wonder though if the main liability point(s) might be either reckless disregard for anothers property by inadequate storage or mental pain and suffering because the negative scanner or whatever decided to eat/cremate the persons property. I think some type of business insurance, perhaps similar to what machine shops or auto body shops carry covering the damage/destruction of customers property might be worth looking into, although I strongly suspect that if reasonable and prudent{hows that for really specific} storage precautions are taken along with records indicating any problems with equipment and the corrective steps taken(i.e. repair invoices) as well as routine maintanance records(check power cords for fraying etc.) and perhaps some signs barring food/drink etc from work areas are avaliable it would be hard to get the case in front of a Judge. I guess the best policy in the end is "Expect the worst,plan for it, and if anything else happens be delighted." Tom

[DJ Dubovsky]

Bingo Thomas,
You hit it on the head....mental distress. What's the going rate for it these days? A cool mil or more? No they won't get you on the value because you can't put one on something like that but they can get you on mental distress and the next thing you know you are paying their shink bills for the next 5 years.

Wow where did that come from? I guess I have a little "mental distress" when it comes to our lawsuit crazy legal system. Don't get me wrong it's the best system out there but too many people and lawyers use it as a get rich quick scheme.

Another question is, if I have insurance, do I become a target? Alot of doctors now are actually dropping thier malpractice insurance because it was actually attracting lawsuits. What lawyer is going to sue if there is no money to gain. I have heard that if you run a sucessful business, you should look into incorporating because then if you are sued they can't come after your personal assets. It sure is something to ponder when in business these days. Insurance? no insurance? Tough question.
DJ

[thomasgeorge]

Dj, Excellent point! Lawyers are reluctant to take a civil case unless there are "DEEP POCKET" types involved, such as insurance or Bonding companies, or the merits of the case are "Open and Shut". My main defence has been to store the customers negatives and/or photos in the most secure and disaster proof way avaliable to me and to retain them for the shortest possible time. Thats not to say that some legal "shark" might not go after your house etc., even without the possibility of winning,in hopes of getting the insurance company to settle, because, as I was told by a Client who is a Lawyer, most cases get settled out of court on the golf course. He's a bit cynical though. I really am at a loss as to what the correct answer to this is. I think that in more populated areas the chances of getting tangled in the legal quagmire are greater than in an isolated area such as I inhabit but who knows? As to "mental distress" I suspect you are right about the million plus. Its a bit scary. Incorporating can provide some protection but it requires lots of paperwork, an accountant, invites audits and is for the small business perhaps more a hinderence than a help, or so my wife who is an accountant tells me, and after 30 years I have not known her to be wrong very often. Good luck, Tom

[Ed_L]

Well, this has turned into quite a thread. If I had the paper work describing my system of safe keeping, and whether or not the print in question actually followed this system (providing it's a good one), I really think it would be hard to prove that I was responsible for the damage. Tom made some good points concerning periodical checks of equipment. This should be more than enough for a court to find that the damaged print was simply one of the unfortunate things that happen in life. Personally, I would take my chances without insurance.

And I agree, Debbie, that the population is lawsuit crazy. A few years ago, I had a doctor tell me that I probably would have a good lawsuit against another doctor, if I wanted to pursue it. (This very much surprised me, since I didn't even ask for that type of advice.) I told her that I wouldn't do that because what happened to me happened because the doctor in question was trying to help me. He was not drunk, on drugs, or anything else to the best of my knowledge. She seemed surprised when I told her that.

Ed

[DJ Dubovsky]

Boy this thread turned out to be a fountain of good advice. I think I too will hold of in the "inc." and "ins." til I have to.

I'm the same way Ed. I had a doctor who was ready to throw in the towel because the ins. costs were killing him and it just wasn't worth it anymore. It's too bad. I always think too if they aren't drunk etc or totally incompetant then they are just human and it's human error. I can't see people being sued for human error. In my opinion, it's why our medical costs are so high we can get good coverage anymore or afford the drugs to help ourselves anymore. But I am digressing from the subject.

Thomas, I would definately believe your wife since she probably knows more than I. So I guess we all just play it by ear and see what's best. Good luck in figuring this question out.

Doug ... Do you see the can of worms you opened here? LOL
DJ

[Ed_L]

Yeah -- let's gang up on him