A giant mirror approximately 10 ft high and weighing 250 pounds or more fell on diners having breakfast at a Manhattan cafe, Balthazar in 2015.
The mirror struck Arnaud Montebourg, 52, a former French politician on the head. He valiantly hoisted the mirror off unsuspecting diners until others rushed to help him. Montebourg was taken to the hospital and later released, sore but not hurt. It's both fortunate and amazing that no one was seriously injured.
In this case, it's not likely that an interior designer's specification was at fault (the building was quite old and early reports suggest the wall was deteriorating), yet this highlights the potential liability interior designers could face.
In a scenario like this one, the specifying designer would be responsible for documenting these conditions. This includes accounting for the size and weight of the mirror, pre-existing wall condition, and any special mounting requirements.
It is the interior designer's duty to document and communicate this information. They must coordinate with the contractor and vendor, and inform them of any conditions that could affect the installation. The designer's specification should require the mirror be mounted on proper structural support or blocking. The specification would also require hardware sufficient to support the weight.
In California and other parts of the country prone to earthquakes, the designer could be subject to even more stringent requirements. This includes adherence to all building codes, especially those designed to prevent a similar situation.
Legal considerations such as liability, are one of many topics covered on the Interior Design Professional Exam.
Content Area 7. Professional and Business Practices 12 Items – 8%
- Scope of practice
- Business structures
In acting on behalf of their client, the interior designer becomes an agent, which also exposes the client to liability. So in the example of the incident at Balthazar, the interior designer would be acting as an agent to the owner, or principal.
Whenever there is harm to people or damage to property, both the interior designer and the owner could be held responsible. The interior designer could be found liable for their actions or inaction. The designer could even be named a responsible third party in any claims. Because of the legal concept of agency, the designer has a fiduciary duty to act in the best interest of the client and use due care to protect the public from harm.
An interior designer who failed to use due care to prevent harm could be found negligent and liable.
Interior designers who specify and sell products are always vulnerable to lawsuits involving product liability. If there is a defect in a product or service that causes damage or injury, the designer can be liable – even if due to a client's misuse.
For example, every two weeks a child in the U.S. is killed in a tip-over related furniture incident, according to the Consumer Product Safety Commission.
“Chests and drawers are a very tempting playground for children [because] they are using the drawers as a ladder,” referring to the way in which children will slide out the drawers and try to climb them like stairs.
Yet Ikea was pressured to recall 29 million dressers and chests after 6 toddler deaths led to numerous ongoing class action lawsuits.
While they are often more visible, these lawsuits are not exclusive to consumer products. An interior designer specifying office systems, lateral files, shelving, seating or even designing custom furniture could face similar issues due to improper design or installation.
On a hospitality project, I once had the task of sourcing replacement crystals for a huge restaurant chandelier that had fallen due to improper installation. Fortunately it did not fall during business hours.
ADA LawsuitsThe number of lawsuits over accessibility violations has risen in recent years, to the point that some states like California are passing laws to prevent serial litigation and abuse.
Starbucks has been involved in a multi-year legal battle filed in 2012 over the height of its drink counters. The suit alleges that stores built in California prior to 2005 do not accommodate those in wheelchairs or scooters. The ADA and California laws require hand-off counters no higher than 36 inches. The Starbucks lawsuit holds that at least 50 of the 1,000-plus Starbucks stores in California violate these rules.
Even though Starbucks has since adjusted their counter design, the suit has not received class certification, and Starbucks has been subject to multiple lawsuits over the same issue, including an ongoing joint lawsuit between 4 plaintiffs.
So how does an interior designer minimize exposure to liability?
While it's impossible to completely avoid liability, an interior designer can limit their exposure through good business practices and procedures.
A contract can be either expressed (written) or implied. To prevent misunderstandings, it's in both the designer's and the client's best interest to use and understand well written contracts.
A good lawyer can be a designer's best friend – not only to help prevent exposure to liability, but help the designer earn more money. A designer can use industry tested contracts by professional organizations like ASID or AIA. They can work with their own attorney to review these templates against the laws in the designer's state or venue of the contract, such as the client's or project location.
A designer can be protected by several types of insurance. These include
- General Liability
- Errors and Omissions
Errors and Omissions insurance is also known as professional liability insurance, or malpractice insurance. This protects the designer from the full costs of defending themselves, including judgements, settlements and claims.
In the example at Balthazar, if the mirror had been custom designed and failed to perform as intended, general or product liability insurance can protect the designer.
E&O or professional liability will protect the designer if there is any personal or financial harm from an act, error, or omission due to the the designers service's.
This will also cover the interior designer's costs of defending themselves, even if a lawsuit is frivolous. For example, if a client sues because they blame the loss of business at their restaurant on the very colors and finishes they insisted on, and then a noted restaurant critic not only pans the food, but the paint color.
An interior designer's specifications are legal contract documents. Many specification systems allow the designer to store a template or boilerplate for each specification so that all details are accounted for.
The designer should also document:
- Decisions like those made at meetings or in conversations with the client, contractor or other parties
- Communication such as with with vendors and contractors
- Construction observation throughout the project, including production or construction safety issues
By using thorough in-house documents like checklists and standard operating procedures (SOPs), a designer can also make sure that the entire staff understand the critical processes, and the interior designer's contractual obligations and responsibilities.
So by planning for safety first, and protection from liability second, interior designers can avoid kitchen nightmares, and legal ones, too.