Photo lab liability question (or: a cautionary tale)

Hello,

 

I have a question regarding the legal liability of a photo lab if they

destroy photographic materials (in this case, negatives). The

tear-off tag one receives when dropping of film says something to the

ellect of "liability is limited to the cost of film and processing."

 

Let's say it's Thanksgiving dinner and 20 cameras are in the room. In

this case, if the lab ruins your film you can still get a copy of that

shot of Aunt Maybel from your sister.

 

What if the shots are irreplaceable and irreproducible? The 14 shots

included each and every B&W large-format image I took during a total

of six months of research in McMurdo Sound and the Dry Valleys of

Antarctica. That opportunity will never come along again, not to

mention the specific combinations of lighting, cloud configurations,

etc.

 

Here's the story: I brought 14 negatives (Kodak TMX Readyload) to

Looking Glass Photo in Berkeley, CA to be developed. They sent them

out to NewLab, a San Francisco lab that only deals with color images.

Although the Readyloads clearly say "Black and White Film" on the

envelope, and although sheetfilm has a notch pattern that allows

unique identification of the film in the dark, NewLab proceeded to

develop the film in color chemicals (E6 or C41 I've not been told).

Yep, the images were ruined. When I called to inquire whether the

film was ready for pickup, I was connected to the manager. After an

apology, I was offered free film and developing for my loss. Again,

these are valuable images -- personally, professionally,

scientifically. After more than a month of dealing with assistant

managers, the general manager, and finally the store owner (through

the general manager), the offer was sweetened to film, provessing, and

a free dinner for me "and a guest". Generous!

 

So my question is this: Have you, kind reader, heard of any instance

where a lab was required to compensate a photographer for damage due

to neglegence on the part of the lab? Was the reward for travel

expenses? Opportunity costs? Model fees? Pain and suffering? I

can't believe the legal disclaimer is binding (to the best of my

knowledge, I didn't sign anything stating I agree with those

ridiculous conditions). Any help or advice would be greatly appreciated!

 

So this brings us to the question of liability.

<i>Have you, kind reader, heard of any instance where a lab was required to compensate a photographer for damage due to neglegence on the part of the lab?</i><p>

 

No. Consider yourself lucky to have gotten dinner. All the lab owes you is film and processing.

First off, consult a GOOD lawyer in this area of law. These liability disclaimers do not always hold up, and it often takes a lawsuit and a judge to get satisfaction. I know of several cases where pro shooters proved gross negligence on the part of the lab and collected damages. Mileage varies widely.

Lets say the lab gives you 100k for your horrible loss. They then must raise development prices; to make these payouts. BUT the lawyers need a third too; so maybe abit more in the USA. :) Maybe a doubling of development prices would help offset the insurance premiums; or maybe a tripling? :) Get the government involved and maybe 4x? . How about a mandatory payroll deduction for lost film ? :)

Wow, you guys are quick! Thanks for the answers thus far (and please, keep them coming).

 

That's a mighty slippery slope you're describing, Kelly, though we wouldn't have started down it in the first place if the labs (both of them, seemingly, in concert) hadn't acted in such a neglegent manner.

 

So let's, for the sake of arguement, flatten that slope completely. As it stands, the lab is out some film and developing, and whatever loss of business I represent. If there is no penalty for their mistake, what motivation do they have for improving their service? I've been assured both that "this is the worst mistake we've made in the <large number of> years we've been in business" and that their "practices have been changed to prevent something like this from ever, ever happening again."

 

Excellent. A bit late, though.

 

What reason do I have to believe that either of these statements is true? This was my first and only dealing with this lab. What if they ruin, say, the work of 1 customer out of every 10 who walks into the door? Unless those unfortunate customers raise bloody hell, the lab is only out those customers -- and if the "free" film and processing lures them back, then the lab hasn't even lost that! (You have to return, after all, to use the free processing.) In the meantime, many of those customers are out precious memories.

 

I bet that if they believed that neglegence on their part would have a real financial cost to them, I'd be printing those negatives right now, not weighing my legal options.

I'd consult a lawyer. I doubt the disclaimer would stand up in court if the lab didn't excercise reasonable care in processing.

 

You sign every waiver and disclaimer under the sun before you undergo surgery, but if the doctor screws up, you can sue and you can win.

 

Stuffing film marked B&W into color developer sounds like negligence to me. These guys are professional. They are supposed to know what they are doing.

 

If the film had been accidentally ruined by some machine malfunction then you might be out of luck, but that's not what happened.

In the UK some people who had their once in a lifetime trip to India shots ruined by negligence were paid substantial compensation. They had to sign a clause not disclosing the amount however! So it is possible. I would also expect a pro lab to include or at least offer as an extra, full insuranace cover against just such an eventuality.

Whenever I read stuff like this I wonder why people even bother with film... oh well. It's your (primitive) choice.

 

If you insist on using primitive technology, always shoot with at least two cameras. Send both your sets of films (which should contain roughly the same material) to different labs, or spend several hours trying to develop the film yourself. In the former case the chances of destroyed memories/work material is minimized and in the latter case the only people you can blame is yourself.

You're very funny, Edward. Have you had much luck holding MS responsible when your PC crashes?

> You're very funny, Edward. Have you had much luck holding MS responsible when your PC crashes?

 

Nice try but you've failed miserably in trying to turn my own arguments against me.

 

I don't use any MS software, have 3 DVD backups of ALL my pics and reburn them all once a year from the harddrive. And no, I haven't yet lost one single, solitary photo.

Ditto on consulting a lawyer. Disclaimers are effective in some circumstances and not in others.

I'd also recommend consulting a lawyer, but on the other side of it--you were in Antarctica for six months and you only shot 14 sheets? If something is important, it's not unusual to shoot at least two sheets per setup (when possible--which it isn't necessarily with long exposures, of course) in case you want to adjust contrast with development time after seeing a proof of the first sheet or in case the film is damaged or if there is dust on one sheet. Get what you can from the lab, but if anything, this experience is a reminder that all sorts of things can go wrong, and I'd imagine there's no monetary compensation that would really replace the lost shots (well, maybe if they can cover another 6 months in Antarctica).

A couple of things occur to me here.

 

First, I would say justice is for the wealthy. Perhaps you are wealthy but pursuing a solution through the legal system would not be cheap and victory far from certain. You could end up out a lot of money and the film.

 

Secondly, could you demonstrate to a court what financial loss you incurred as a result of the lab's incompetance? Sure you could come up with receipts for air fare, hotel, etc, but convincing the court that the sole purpose of your trip was to take these photos would be a challenge and failure to so convince them would likely mediate the lab's liability to some degree.

 

Also, the court could decide that some of the liability for the loss falls on you for using a lab that produced quality that was unknown to you for such an important event. In other words, someone with your experience should have known better and should have used other resources available to you.

 

All that being said, more than once I have been amazed by the cases some scum lawyer would take and the awards jurys dole out.

The problem is twofold. First, a lab has no way, in general, of knowing how valuable your pictures are. If they actually paid off the full cost to retake shots they ruined, then suddenly EVERY shot would be immensely valuable.

 

In the business world, you generally cover a possible liability by raising your prices slightly. However, when there is a whopping huge liability out there, you either have to raise prices dramatically or else disclaim responsibility for it. You might notice, for example, that your own personal auto insurance probably has a fairly low liability limit- they won't pay out twenty million to someone you run into. And this is the lab's way of handling the problem. The alternative is that we could all be paying $50 a roll to have Walmart develop our film.

Again, thanks for the responses, even the off-topic ones! Why, Edward, would I use film instead of digital? Three reasons: 1. The image. 2. The image. 3. The image.

 

Let's say that out of frustration I change hobbies and take up restoring old cars. When it came to painting, I'd put together an air compressor, some hose, an airbrush attachment, etc. for a painting system. Then I spend a lot of time practicing the art of laying down a flawless coat of pain, spraying on some sheet glass that I could strip and repaint. Then I'd build a spray booth in my garage so that dust wouldn't ruin the smooth surface and dew wouldn't ruin the gloss. Then I'd feel ready to tackle restoring that '42 Whatever Coupe.

 

A neighbor, seeing all of my preparation and work, holds his tongue for a few months. Then, when I've finally finished with the car and rolled it out into the driveway, sparkly and perfect, he strolls over.

 

"Man, I don't know why you put up with all that work. I painted my car over there just last week with almost no work!"

 

So you look over and there it is, his '74 Vega, looking pretty dapper in a new coat of paint. Worried that you've been foolish in your quest, you cautiously head over towards his car. The thing is, the closer you get, the more you see the runs, streaks, dust, and no -- can it be? Cat prints on the trunklid?

 

Turns out your neighbor went down to the auto supply store, bought some Imron, then painted his car with a brush. You walk back to your car, pleased and satisfied that your car looks great from every angle, from far away and close up.

 

So -- why film (especially 4x5, which we're talking about in this post) vs digital? The end result -- the image -- is like the paint job. Yea, both look pretty good from across the room, or if an 8x10 print is your goal. Digital simply doesn't have the resolution, tonality, snap, feel, or life of film. And for me, a small print is 16x20", and even then you can barely see grain if I've shot with 400ASA film.

 

And I enjoy the process. I've not found a digital camera that I enjoy even composing the image through -- the D70's viewfinder is way too dark, for instance, and most of the prosumer viewfinders are video displays. The pro models are ridiculously expensive (and still lower-res than 35mm!). I like the connection that looking at a groundglass gives me to the image.

 

Oh, and I was carrying not two cameras, but 4: my 4x5, two Nikon FE2's, and a digital. It was too cold for digital (and my little Nikons give better results than digital anyway). Yea, the "insurance" shots from the Nikons came out just fine, as did all of the 4x5 E6 that I shot and sent to different labs.

 

One more point: I consider digital to be primitive. How? Well, any technology in which the resolution doubles every two years is primitive. Yea, the image handling is great. But most of us have experienced a hard disk failure and/or scratched our favorite CDs. So your protocol of yearly backups might work well, but it sounds tedious to me. Most of Ansel Adams' original negatives are perfectly printable today (and you can rest assured that excellent copies are safely stored away).

 

That's why I bother with film.

I might add that in the month or so I've been dealing with the lab -- out of court, at least thus far -- I've really not been asking for much, nothing like the cost of flying back down there for a 6-month, all-expenses-paid stay. (I'd be afraid to work up the cost, as it took a military transport to get me there!) I'm guessing that if I were to go through with the expense and hassle of a court case, I WOULD be asking for equivalent expenses. Then we'd be talking about an amount 100 or 1000 times greater.

 

Billy, I don't think it's necessary for the trip to be for the sole purpose of photography. Many lawsuits have been filed against wedding photographers, but I doubt the unfortunate couples had to prove that the wedding ceremonies was staged solely for the photo opps they provide.

 

David, why only 14 shots? Because that's all the time that weather (it's pretty dang cold and windy down there, making LF photography a brutal undertaking) and work (I was studying glacier dynamics) would allow. I have E6 dupes of a couple of the shots, but not most of 'em. In some cases, the weather turned so quickly that a second shot simply wasn't possible.

Jeff:

 

"This was my first and only dealing with this lab."

 

I hope you don't take this the wrong way. I'm really not trying to pour salt on your figurative wound...

 

I can't imagine giving an important job to somebody that I've never dealt with before. I mean, I could understand trying them out. Drop off one, and see what happens. If you're daring and wanting to risk a lot, drop off three. But giving all fourteen to an unknown lab?

 

Even when I'm doing my own processing, if I'm working with really, really important images, I'll divide them up into different batches. That way, if something is really out of whack and my development is ruined, at least I haven't ruined *all* the images from the same session.

 

Another point is that I would not give film to somebody who is going to outsource to yet another party. That's an extra point of failure. One more communication mishap waiting to happen. They're both going to be pointing fingers.

 

This doesn't help you with your current situation, but I do not believe there's much to be done after the fact other than learn the lessons you can to avoid making the same mistake again.

 

 

Eric

Hi Eric,

 

There's good advice in every line of your post, and I hope I'm not the only one to heed it. My figurative wounds are why I subtitled this question "a cautionary tale". And although changing my own protocol (as I will from here on out) would've reduced the chances of a complete loss, I don't think that lessens the labs' liability.

 

Truth is, it was so difficult finding a lab that would even touch the stuff that I was relieved to have found one. When I dropped the film off I did talk to the shop personnel about where the shots were taken., so they did know about their uniqueness and importance. And wouldn't you assume that a photo lab would assume that every photo and image is important?

 

The most frustrating thing about this is that if that little disclaimer actually gives as much protection as they seem to believe -- and I can't believe that it does -- what it actually amounts to is the following:

 

"By turning this film in to us, you agree that we can do whatever we want to it and that all you're entitled to is a replacement (for film you've already bought, by the way, so even this isn't as generous as it seems). If we have need for a drink coaster, an implement to scrape dog excrement off a shoe, or whatever, and your film is closest at hand, that's our right and your loss."

 

Given the blanket immunity that photo labs would then enjoy, let me develop a ridiculous -- but apparently legal and basically risk free -- scenario. What if the name "Looking Glass Photo" refers not to the Lewis Carroll story, but to a little video camera behind the counter that only employees are privy to? Whenever an employee learns that film is being turned in from a once-in-a-lifetime trip, they send the film along to NewLab (whose name refers to the inside joke that "After dealing with us once, you'll be looking for a NewLab!") with a note saying "Hey, goof this one up and we'll make it worth your while!" NewLab dunks the film in the wrong goop, sends it back to Berkeley, and waits for its copy of the videotape showing the irate customer throwing a hilarious but utterly futile hissy fit.

 

Now, I know that the scenario I've proposed is completely preposterous, but really, what prevents them from abusing their customers if they have such blanket immunity? I really don't think word-of-mouth campaigns are all that effective -- the complainers always seem to end up looking like deranged wackos (something we have an abundance of here in Berkeley).

 

Alright, before I end up sounding like a deranged wacko myself, I'll end this rant. For now. I'm consulting a lawyer.

 

Cheers,

 

Jeff

I think you'll find that any lawyer will tell you that when you drop your film off at a lab, you create what's called in contract law, a bailment, giving them temporary possession of the unprocessed film to turn it into processed product utilizing customary industry practices. In order to circumvent the bailment language in your receipt, which limits liability to replacement costs of film and processing, (even on a print order, if they lose the negatives), you have to demonstrate gross negligence, which goes far beyond the usual elements of a civil negligence action, i.e., duty, breach, causation and damages.

 

And, you would likely have to demonstrate that for some reason, both labs, Looking Glass and NewLab, owed you a higher standard of care than everyone else they do business with. To reach that level, you'd likely have to have told Looking Glass the value of the work which they in turn, as an agent of NewLab, would have to convey to them in order to give them an opportunity to refuse to process your work based upon the declared value. Granted, NewLab made a mistake which is not very common in the business, but nonetheless, happens from time to time in spite of safe guards labs put into place to avoid these kinds of things.

 

While you're correct that sheet film has notches indicating specifically what type of film it is, if every lab tech took the time to read the notches on every sheet of film, their turn around times would be disproportionate to the work load. Failure to read an understand them, for the average lab tech, would hardly rise to the level of negligence or even gross negligence on the part of an ordinary, reasonably prudent lab that successfully processes 100's of sheets/rolls of film per day.

 

Good luck in your quest for justice beyond the cost of your film. I for one, regret that this happened to you, but the lesson, as most professional photographers will tell you, is fairly simple. Batch your film separately. Don't put all your film through a single processing run, shoot back-ups, separate them, and process them separately. The defense argument in this case is simply knowing what you knew concerning the valuable nature of these photos to you, and what the lab didn't know, then why you didn't do that. Oh, and btw, there are at least 4 high end labs in San Francisco that process b&w and still could have made the same mistake. Finding a good lab, or continuing to use a bad lab on an off day, is a risk of being in this biz. It's hardly a perfect process. Take it light. Mark

The local Walgreens has now developed over 800 rolls of my C41 35mm film; and never screwed up a roll yet. The local "pro lab" that went into dire straights a year ago screwed up several 4x5 tranys; 120 rolls; and 35mm too. They charged double what Walgreens cost; and screwed up an infinite more rolls as a ratio. If you want a lab to pay for the losses; the labs charges for us all most rise. There is no free lunch. <BR><BR>My Kodak Reference Handbook of 1952 says there were 10,855 films that couldnt be returned to owners due to poor addresses; ripped packages etc IN 1951 ! I read this in the 1950's and always split super important jobs in two batches; and had my name and address on the first frame; with greys card and color patches. This was mentioned in photobooks 1/2 a century ago; as a method to "be prepared" as they say in scouting. This would be good fodder for the opposing attorney; as a lack of professionalism on the photographers part; for "putting all the eggs in one basket". Cigs were known as coffin nails 1/2 century ago too; and the evils were taught in schools then too. The current goofy thought in the USA is one is not responsible for one's actions; and one can sue for any fool thing at all. The lawsuit gravy train IS rewarding; and the "good gooders" just pay more for goods; see factories close; and a token few chaps hit the lottery jackpot; are set for many lifetimes. <BR><BR>I had a "PRO" lab ruin a mess of aerial photography images in the 1960's. We we going to develop them in house in batches; the top boss dog had this "super pro" lab develope them; ALL at once. The gurus/idiot/dunce lab jockeys developed the films under safelight "Since all B&W aerial is ortho". We lost several days work; plus plane cost/hours in the air costs; due to a boss who failed to understand the risks of an "all in one basket develop" run. The film wasnt ortho; and was so marked.

You dodged responsibility by allowing your Berkeley lab to outsource allegedly important film. Your carelessness multiplied inherent and everpresent photolab/human potential for error, about which the lab reminded you in advance. Your film was quite clearly not important to you. Now the discussion has turned to enriching attorneys.

Having a bad day, John?