You Break It, You Buy It? Not According to the Law
by Daniel Grant
n describing who pays the clean-up costs after a military incursion, Secretary of State Colin Powell is said to have invoked what he called the “Pottery Barn Rule”: “You break it, you own it.” It’s a logic that makes sense to anyone who has ever gone into a store filled with breakable objects, sometimes placed below signs cautioning people to be careful, or else. Logic, however, sometimes exceeds reality. Pottery Barn, which is owned by Williams-Sonoma, has no such rule, nor do any of its 170-plus home furnishings stores have signs warning potential customers to be careful or that they would be responsible for damage they cause. Signs of that sort would “put off customers, who tend to be pretty careful anyway,” according to a spokeswoman for the company, but the main reason neither Pottery Barn nor Williams-Sonoma has such a rule is that it would not have the backing of law.
|The “Pottery Barn Rule” needn’t exist in fact but just in a customer’s guilty conscience.|
“There is no Pottery Barn Rule in the law,” says Washington, D.C. lawyer Ann M. Garfinkle. “If you break it, there is no law anywhere to say that you have to pay for it.”
She notes that by placing items on display, gallery owners and exhibiting artists are implicitly inviting potential customers to examine and handle them, which would-be buyers may do without making any guarantees that they will make a purchase. Accidents happen: Damage is part of the price of doing business, and the risk is borne by the seller. Certainly, a customer’s negligence may have been the cause of an item’s damage or destruction and could be the basis for a lawsuit that a retailer or artist might choose to bring. However, each state (and even different judges) defines negligence differently. Negligence may mean that a customer failed to take care or did not heed a warning to take care, or perhaps they were not minding their children; carelessness may require inappropriate actions, but a customer’s failure to take care may be mitigated by a merchant’s display (a wobbly pedestal or one item placed behind another, requiring someone to reach around). The actions of the customer determine whether or not he or she is responsible for the damage, but pursuing this — or any matter — in court can be a lengthy and expensive process. “Negligence is a pain in the neck to prove,” Garfinkle says.
|Illustration by Larry Knox|
The insurance industry tends not to be much help, either. The policies that artists and craftspeople purchase, protecting their studios and exhibition booths from fire, theft and personal injury, provide coverage only for the replacement value — rather than the retail value — of their artwork and crafts. In other words, a $2,500 sculpture that is damaged is insurable only to the cost of the materials. “You take your chances,” says Teresa Polito, a sales representative at the Mechanicville, New York-based John Carriero & Son insurance company, which offers plans used by many artists and craftspeople who live and work in the Northeast.
When an accident happens, a number of events may occur: The customer may hope that no one noticed and quickly exit the premises; that person might offer to pay some or all of the cost of the item damaged; the seller may decide to take the loss and forgo any payment or, quite the opposite, accuse the customer of negligence and demand payment.
Show sponsors rarely keep tabs on damage taking place during an event, or even ask if there has been any. The American Craft Council investigates breakage and other incidents occurring at their shows during the night — for instance, damage caused by a cleaning service or even the ever-present problem of birds flying around inside the convention center where an event takes place — but not during the day. (The cleaning service would be told to make a settlement with an artist, but damage caused by birds is no one’s responsibility.) “If a visitor were to break something, knock something over with a sleeve, it will be resolved privately between the artist and the visitor and may never come to my attention,” says Reed McMillan, director of marketing at the American Craft Council.
According to Linda Post, president of the Massachusetts-based Paradise City Arts Festival, which operates fairs in three states, “We give a questionnaire to our exhibitors at the end of every show, asking about sales and how well the show was run, but we don’t ask questions about damage. We don’t get involved in disputes. Breakage may happen, but we never hear of it.” If a visitor to a festival is disruptive or behaves suspiciously, exhibitors are directed to contact security officials, again leaving the sponsor in the dark. The Smithsonian Craft Show in Washington, D.C., on the other hand, requires exhibitors to notify show committee members about troubling visitor behavior, and they will then alert security, but the committee does not track damage or its causes. “We tell exhibitors that they must have their own insurance,” says Heidi Austering, program coordinator for the Smithsonian Craft Show. Neither the Smithsonian nor Paradise City offers to mediate any disputes between vendors and visitors resulting from damage. “That’s something to be settled between the exhibitor and the buyer,” Austering says.
If people who cause damage legally are not required to pay for what they have done, why do many of them still do so? Most people maintain a basic sense of fairness that they have to pay for the damage they caused and also a belief that the law requires them to do it. The “Pottery Barn Rule” needn’t exist in fact but just in a customer’s guilty conscience. However, with no actual law to prod people into doing what they should, it behooves artists who exhibit their work in booths at festivals or even in their own studios to maintain their temper and appeal to a visitor’s sense of right and wrong.
Daniel Grant is a Massachusetts-based writer and author.