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"Limit Of Liability" Policy Creaks Into the Digital World

by Jerry Lansky

First there was Adam. Then Eve. Though my memory is somewhat vague, I know at least that the heavens and earth and light and so many other things were begat in the 50 chapters of the Book of Genesis. Is it possible that somewhere I missed the Limit of Liability statement that we print on our order envelopes and hang on the wall? It MUST go back that far.
In fact, checking with PMA, an organization started in 1924, I find no one who recalls exactly how old the Limit of Liability statement is although one man with a long, white beard said he thought it has been printed on photo envelopes since as early as the 50's. I won't argue.
The essence of the LOL statement that PMA offers for industry use is that in the event the processing lab loses or damages a customer's roll of film, the limit of liability is to replace the film and provide free processing. (In case you haven't read it lately, see the sidebar for full text.) Some envelopes that I've seen offer film replacement only (Wal-Mart One Hour); others an optional money refund (Fujicolor).
There isn't a lab that has not had to invoke the LOL statement to a customer who has sadly been told that his/her film either fell off a leader card in the developer, been mis-packaged and may, some day, be brought back by "the other customer," whoever it may be, or simply can't be found. My people always grabbed me when that unhappy customer was at the counter. And while the LOL was explained with compassion (and the need to retain the customer and sidestep a law suit) it always resulted in me giving at least a half-dozen rolls of film and/or whatever else would calm the troubled waters. Certainly, we all do that for all the right reasons.
The PMA LOL has been such an industry standard for so long that when envelopes are ordered from the supplier, it isn't even necessary to tell them to add the Limit of Liability statement on the folded tab. It's automatic.

The Limits of Liability
But times have changed for the industry. As I noted in my last column we've gone through the Boomers, Gen X and Gen Y and now we're in Gen Dig—for Generation Digital. But, while times have changed, the LOL statement has not. Most envelopes today still sport the old disclaimer offering a roll of film and processing. If a customer has just been told his or her flash memory card is lost or damaged, offering a replacement roll of film as compensation may be adding comical insult to serious injury.
The fact that people are now bringing in CompactFlash, SmartMedia and Memory Stick is not being acknowledged in the LOL. Yet, the digital processing world opens the door to a whole new area of vulnerability for processors, especially the on-site folks, and the LOL has not been tweaked to expand the lab's liability limits. (There are a few exceptions that I'll note.)
The matter was first brought to my attention in an e-mail sent to me by Sherry Matalone, Terry's Filmworks, Sacramento, CA. In it she said, "With film developing, the industry has developed a limit of liability. What about digital media? This issue was raised when a customer accused us of ruining her Sony memory stick. It turned out she was wrong but the situation just reinforced that there now exists a

RITZ CAMERA LIMIT OF LIABILITY

Not responsible for any item left over 30 days. Submitting any film, print, slide, digital media or other work to us for processing, printing or handling constitutes an AGREEMENT by you that any damage or loss by this company, its subsidiaries, affiliates or agents, even if due to our negligence or other fault, will only entitle you to replacement with a like amount of unexposed film and processing or similar type and capacity of digital media. Except for such replacement, the acceptance by us of any film, print, slide, digital media or other work is without warranty, expressed or implied, or other liability. Recovery for any incidental or consequential damages is also excluded and no warranty is given for lost, damaged or deleted images. Many images are produced in public areas. misuse or public display of images under these conditions carries the same limits of liability except that no value is given to any images.

difficult gray area regarding legal responsibility and liability with digital media." She said that with film it is so simple but, "I am at a loss to even try to figure out what to say to a customer in regards to their digital media."
Sherry did exactly what I would have done. She called PMA. Her e-mail to me: "Their legal people responded saying that they have not developed any policy and that labs should develop their own."
Sherry wrote: "If you have time, please let me know your thoughts." Ok Sherry, and I'll add those of others, too.
Is Sherry, co-owner with her husband Terry of a single lab that dates back to 1979, the only lab owner asking about liability limits in our digital era? Certainly the moguls of the industry are way ahead of Sherry on this one. Right? No, wrong.