Who Pays for Breakage in a Gift Shop?
It could happen to almost anybody. You’re browsing in a gift shop when your jacket brushes against a ceramic sugar-and-cream set on the shelf. It teeters, then falls. You lunge to save it. The set tumbles down. Crash. It shatters on the floor.
That’s exactly what happened recently to Kelli Zaehringer, a Glendale reader. She and her husband were shopping at a store in Solvang. Her husband was the culprit, and she wants to know if they were legally obligated to pay for the broken ceramic set, and how much they were obligated to pay.
In this case, after some wrangling, the shop owner agreed to accept half of the $95 retail price, which was his cost.
No Specific Statute
What does the law say about all this? Surprisingly, not much, at least directly. There doesn’t appear to be a specific state statute directed at either shopkeepers or customers. And since the amount in dispute is usually so small (I guess people just don’t drop $25,000 art pieces, when it might pay to litigate liability), there aren’t many published court decisions to help answer the question. So general legal principles must be used to help understand the issue.
Under tort law principles, you probably must pay if the damage to the property was the result of your carelessness. But if it was entirely someone else’s fault--somebody left a banana peel and you slipped, or someone pushed you--then you’re probably not liable for the damage. If the shopkeeper was partially at fault--for instance, by placing a fragile item near a busy aisle where it might easily be jarred, then your share of the loss should be allocated based on the proportion of fault.
Torts are not fruit pastries, as some first-year law students joke. They are a legal name for civil (non-criminal) wrongs. Tort law covers everything from car accidents and defective products to slander and fraud.
Overly simplified, your negligence is actionable--that is, you have to pay for your carelessness--when you have a legal duty to use due care, you have breached that duty, and your breach has caused injury or loss. You have a general duty to use due care in activities from which harm might be reasonably anticipated. So when you drive a car or walk across the street or go shopping, you must act in a reasonably prudent way or pay for the foreseeable damages that result from your unreasonable behavior.
However, tort law imposes strict liability on trespassers, according to Stanford University law Prof. Marc A. Franklin. For example, if you trespass on someone’s land and build a fire, explains Franklin, you would still be liable for the damages if one ember later blew from your fire and destroyed the property, even if you poured 500 buckets of water on the fire before you departed. It doesn’t matter how reasonable you’ve been; you were trespassing. So if you sneak into the gift shop without even the implicit consent of the owners and break something, you have to pay for it whether you were careless or not.
You might also be able to analyze this legal problem from a contract perspective. Some stores post signs that say something to the effect that “if you break it, you pay for it.” The shopkeeper would argue that you have contractually agreed to pay for anything you break simply by entering the store. That’s a dubious argument.
A Binding Agreement
It would be much better for the shop owner, on a contract theory, if the sign said: “Don’t handle this fragile merchandise. If you do pick it up and it breaks, you will have to pay for it.” Then, the shopkeeper could probably persuade a judge that you entered into a binding agreement when you picked up the piece. You’d have to pay. But because stores generally don’t have lawyers write their signs, it’s never that neat and clean in real life.
Each legal theory has a different measure of damages to determine how much the customer has to pay. Under a tort theory, the damages normally awarded are meant to compensate for the injury suffered, so the customer might have to pay only for the shopkeeper’s loss--the replacement price of the item. But using a contract theory, the shop owner might also be entitled to the benefit expected--the profits on the sale of the item, so the full price might be appropriate.
In any event, this is just one lawyer’s speculation, based on basic legal principles. I’d be interested in hearing from any lawyer who has handled this type of case in court to see if the judge agreed with my preliminary view.
Klein cannot answer mail personally but will respond in this column to questions of general interest about the law. Write to Jeffrey S. Klein, Legal VIEW, The Times, Times Mirror Square, Los Angeles 90053.