“Put that down! You don’t look with your hands.”

How many times I have given that reprimand to my kids when they touched and picked up things at auctions and in stores. The reason for my concern is rooted in the same apprehension that a reader expressed in a recent email. Here is part of what the gentleman wrote.

“I read your column weekly in AntiqueWeek. My questions are these. First, what liability does one have if during an auction he were to drop or damage an item while examining it? Second, how would a value be determined if one was liable for such damage? Third, do auctioneers usually purchase insurance to cover accidental damage for themselves and their auction attendees? Fourth, would it be wise to purchase insurance to cover oneself?

“I handle pieces of pottery and other objects that are sold for many hundreds of dollars. It has always worried me what would happen if I accidently damaged something. Your advice will be appreciated.”

Four questions need four answers. Let’s get started.

First, you asked what liability an auction attendee would have for breaking an item while examining it. Whenever you go into an auction preview, or store, or even someone’s home, you are around property that belongs to someone. This property represents value and its damage or ruin would represent loss of value for the owner.

When you choose to put your hands on another’s property and handle it, or otherwise voluntarily come into contact with it, you assume a legal duty to use the same care that a reasonable person would exercise under the circumstances to avoid causing damage or loss. Depending upon the circumstances, that degree of care might indicate that the property be handled gingerly, or maybe not at all. The bottom line is that if you breach the reasonable-care standard and the property is damaged or destroyed as a result, you would have been negligent and will be liable to the owner for the amount of the damage or loss you caused.

If you go into a major retailer’s store, handle something, and negligently break it, the chance that the retailer is going to demand that you pay for the broken item is next to nonexistent. That is not, however, because the retailer would lack a legal claim against you. It is because sellers of this sort usually choose to swallow such losses in order to maintain the good will of their customers and the public at large. Some small sellers, auctioneers, and the like are not going to be so forgiving and generous for a variety of reasons, including their inability to absorb such a loss.

This rule of law reminds me of the caution that was on the signs I frequently saw as a boy in numerous antique stores I visited with my parents. It read: “Pretty to look at, Nice to hold; But if you break it, Consider it … SOLD!”
That little rhyme summarizes both the law and the policy on breakage that these owners had. To me, that always meant look, but don’t touch.

Second, you next asked how the value of such a loss would be determined. That amount would be determined like damages are established in every negligence case. In a civil lawsuit, it is not enough for a plaintiff to simply claim that a defendant caused the plaintiff damage. The plaintiff must prove a case of negligence, which requires the plaintiff to satisfy the necessary burden of proof on four legal elements: (a) that the defendant owed the plaintiff a duty of care; (b) that the defendant breached the duty of care; (c) that the breach of the defendant’s duty of care caused the plaintiff to suffer damages; and (d) the amount of the damages that the plaintiff incurred and is entitled to recover from the defendant.

Establishing the amount of damages can be accomplished by the negotiation and agreement of the parties, or it might have to be done through witness testimony (maybe even an expert witness’s opinion) or other persuasive evidence presented to a fact-finder (such as an arbitrator, judge, or jury) for consideration and decision.

Third, you next asked whether auctioneers commonly purchase insurance to protect themselves and auction attendees against these losses. The answer is they do not. Some auctioneers carry liability insurance that, in some instances, protects against casualty and loss to consigned goods, but this coverage would often not extend to damage caused by auction attendees. The coverage would certainly not afford such attendees direct indemnity for their negligent actions.
Fourth, you finally asked if it would be wise to purchase insurance to protect yourself against such a claim. I cannot give you advice on what insurance you might need or want to purchase. I can say that I expect such coverage would be hard to obtain, but your insurer could advise you on both the availability and cost for such coverage.

Just know that when you reach for an item, you run a risk in touching it and picking it up.

If something bad results, you could be on the hook of liability.
By the way, this risk is not only for a mistake that you might make.
It also encompasses the potential for you to become entwined in the negligence and damage caused by another person.

More than once at auctions, I have seen attendees mishandle items and break them.

Each time the culprit’s reaction was not to alert a member of the auction staff that he had just broken the piece. Instead, it was to try and fit the pieces back together as quickly and best possible and then leave the item as if it were unbroken.

Of course, this was just a trap for the next unsuspecting person who reached for it only to have it suddenly and unexpectedly fall apart in his hands.
Auction-goers beware. If a piece of expensive pottery falls in half in your hands, you might end up owning both pieces.

The views and opinions expressed in this column are those of the author and not necessarily those of Farm World. Steve Proffitt is general counsel of J.P. King Auction Co. Inc. (www.jpking.com). He is also an auctioneer and instructor at both Reppert School of Auctioneering in Auburn, Ind., and Mendenhall School of Auctioneering in High Point, N.C. He welcomes questions from readers about auctions and auctioneering. Readers’ communications may be reprinted in whole or part. Mr. Proffitt will answer selected questions but cannot provide personal answers. His answers do not represent legal advice or the formation of an attorney-client relationship and readers should seek advice from their own attorneys on all matters. Please submit questions to sproffitt@jpking.com