Art mishaps: Who Foots the Bill?

By: Nicholas Lipperd

One misstep at a museum social hour was all it took to destroy a $42,000 sculpture. Seconds after a museum patron accidentally bumped the pedestal, Jeff Koon’s porcelain “balloon dog” sculpture lay shattered on the floor. As onlookers watched in horror, the person who bumped it surely had one thing racing through her mind: will I have to pay for this? It was surely the same question asked by the parents of the twelve-year-old who tripped and accidentally put a fist through a $1.5 million painting in Taiwan. Exploring both practical effects and legal theories that apply to mishaps with museum patrons, this article comes to the conclusion that there is only minimal worry.

The majority of mishaps involving art end up being covered by insurance, but relying on insurance is never a straightforward and easy process. As damaged art claims are on the rise, the incentive for insurance companies to make claims a straightforward process continually shrinks. Further concerns arise if there are terms in the insurance contract that disclaim damage from patrons in certain instances. What if the museum is displaying the art for sale on consignment and does not obtain insurance, thinking to save a few pennies? This is certainly an option for museums, though states like Washington impose strict liability for damage on museums when selling art on consignment. While insurance removes most of the worry over museum mishaps, it is not a foolproof solution. 

Even if museums lack the safety net of insurance coverage, patrons likely need not fear the price tag of accidental damage. Any claims based on such damage will be governed by state tort law because museum patrons have traditionally been considered invitees. While many states have moved past such rigid categories in tort law with respect to third-party harm on public land, the categorization of invitee is still important to understand why liability will not likely fall on a museum patron.

A public invitee is a person who is invited to the property for a purpose for which the land is held open to the public. A museum thus owes a duty of care to museum patrons as invitees, and the museum is liable for injuries and damages caused by the condition of the museum. In layperson terms, this means if a museum failed to properly secure a priceless sculpture and a patron bumped it, it is the museum and not the patron who is responsible. This protection may not hold when the patron specifically recognizes a danger and fails to adhere to it, is trespassing, acts intentionally, or is otherwise acting negligently. The responsible museum-goer need not worry. Yet, these exceptions to invitee protection call in to question a few problematic situations.

If a patron’s actions in damaging art are truly intentional, there are not many defenses available. This is not particularly controversial; if one intends to destroy art, one should be held responsible. But when the action is intentional but the consequences are not, what then? The outcome may be uncertain. In one comical example, a museum janitor thought a contemporary art exhibit was simply trash and consequently “cleaned up” the exhibit by throwing it away. Luckily, the actions were viewed as an honest mistake by the museum, and she was not responsible for the cost. 

If museums have interactive exhibits, the patron is acting intentionally when interacting with the exhibit. When such exhibits invite the patron to physically engage with the art past merely pushing a button, greater risk of damage is inherent. Common sense would dictate that a patron who, hypothetically, breaks a lever on a piece of interactive art after being invited to push said lever, has not intentionally broken anything, despite the act being intentional. One legal theory that protects the patron here parallels the personal injury defense of assumption of risk. The museum is responsible for setting up any interactive exhibit and understands that the risk of damage is increased when inviting patrons to interact. While this protects patrons who act reasonably in such exhibits, a negligence standard may still be applied to their actions in fact-specific circumstances. 

Negligence may pose the most risk to museum patrons just as it does in many other social settings: when alcohol is present. It is increasingly common for museums to host special mixers or functions where alcohol is provided or available. “I just had one too many” is not a valid excuse in any setting and especially not at a museum. A patron’s actions will be judged as either responsible or negligent when compared to a sober adult in the same setting. While commercial hosts can be held liable for damages caused by the intoxication of the persons they serve if those persons are apparently under the influence of alcohol, this is fact-specific and not a protection to be relied upon when the liability for tens of thousands of dollars of damage may be called into question.

So if you plan on enjoying a nice afternoon at the museum, you shouldn’t spend much time worrying about covering the exorbitant cost of an unfortunate mishap. However, should you consider visiting a new interactive exhibit at your local glass museum after a few happy hour drinks, more caution is certainly warranted.

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