A. Responsibility Owed the Public
B. Responsibility Owed Employees
A museum invites the public to enter its premises and view its displays. The law infers, therefore, that the museum will act in a reasonably prudent manner to ensure that the visiting public is safe from hazards. This duty applies not just to the condition of the museum stairs and walkways, which are the traditional slip and fall areas, and to the coat-check booths, which spawn umbrella claims, but also to the exhibits themselves. Consider the following situations.
Hypothetical Example 1. The Mellow Museum of Modern Art has a light show exhibit that is described by the critics as “Stunning! An Emotional Tour de Force!” The euphoria generated by the show’s reception is somewhat dampened when the museum is sued by Ms. Delicate for injuries sustained in a fall when she became “disoriented” by the exhibit. Shortly thereafter, a similar suit is filed by Mr. Elderly, who claims he became nauseous when viewing the exhibit and “blacked out” on leaving the museum. Obviously, Mellow Museum has a problem, and expert advice is needed.1
Hypothetical Example 2. The Hoosier Historical Society plans to refurbish the grand salon of its Governor Grover House. Much care is being taken to find authentic fabrics, carpets, and decorative items. Someone asks whether fire safety must be considered when selections are made and installed even if this jeopardizes the “integrity” of the finished exhibit.
Hypothetical Example 3. The Seaside Science Museum is exhibiting space capsules and related equipment. Children are particularly attracted to the display, and as a precautionary measure, several signs are posted that say “Do not climb on exhibits.” During the course of a busy morning, a five-year-old boy, while touring the museum with his kindergarten class, manages to injure himself seriously when attempting to climb into one of the artifacts. How will the museum fare when the inevitable claim is brought?
Art, historical integrity, and “meaningful educational experiences” usually must bow to safety and health considerations, according to the law. Local fire and safety codes, local building codes, and the law’s traditional test in negligence cases—the “reasonably prudent man rule”2—invariably apply to museums and historic structures.3 A museum is advised, therefore, to make safety a prime consideration when choosing the objects it collects, the objects it displays, and the exhibit methods it uses. A few practices can be instituted to draw safety into these routine museum activities in a timely manner.
A museum’s collection management policy can require a safety evaluation among its accessioning criteria as well as among its incoming loan criteria. Objects posing safety problems usually demand special handling, special display, and/or special insurance, none of which a museum, on reflection, may want to assume. Calling attention to the safety factor before a decision is made to accession or borrow an object allows for a more objective analysis of the merits of the acquisition. The spinning mobile, the angular piece of fabricated art, or the highly flammable but authentic carpeting may lose some of its attractiveness when considered for display in a crowded museum setting. What is the potential for injury? Are there simple yet effective measures that can be taken to protect the public? A sign saying “Don’t climb” is not effective for the young child who cannot read,4 and a movable stanchion may be a totally inadequate guard if surrounding exhibits draw a visitor’s attention upward. Is the object one that can be viewed satisfactorily from a distance or from behind protective barriers, or will such methods of display only frustrate the visiting public? Each proposed acquisition or use of a potentially hazardous item raises its own safety consideration that deserves early and thoughtful evaluation.
Frequently the mode of exhibit can ameliorate a safety hazard inherent in a collection object, but just as frequently the manner of exhibit, not the object, can create the hazard. This is especially true if the exhibit is an elaborate one utilizing background construction and special lighting and audiovisual equipment. The curator and the designer, in their efforts to achieve an authentic and effective display, may lose sight of safety factors. The change of lighting in the exhibit area may be too drastic, or an inadequate demarcation of levels may cause tripping hazards. Both conditions are particularly hazardous in an area that may be crowded and in which visitors are encouraged to look at displayed objects and not at the walkway. Proper ventilation is another important consideration, as are adequate traffic patterns and unobstructed, visible exit routes. A museum should have a firm policy that no exhibit proceeds beyond the preliminary design stage without review for safety considerations.5 As a rule, aesthetics, authenticity, and the law coexist quite comfortably and economically if time is allowed for consultation and adjustment.
The above-described procedures for early consideration of safety issues will not work unless someone within the museum has been assigned the responsibility to keep abreast of applicable rules and regulations so that information is available in an efficient manner. Also, when a museum is contracting out for exhibition design or any other type of work that affects its premises, the contractors, as appropriate, should be required to adhere to recognized safety standards. Equally important is a commitment by the museum to budget for safety needs. Too often, safety is very low on the list of priorities when museum funds are being allocated.
The Occupational Safety and Health Act of 19706 affects the working conditions of just about everyone employed in a museum located in the United States. The act extends to all employers “engaged in a business affecting commerce”7 and to their employees. It requires that each employer “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”8
This general duty has been translated by the U.S. Department of Labor, through its Occupational Safety and Health Administration (OSHA), into numerous, quite specific OSHA standards that regulate the work environment and work practices. All OSHA standards are found in Title 29 of the Code of Federal Regulations (Parts 1910 et seq.). Although OSHA has broad regulatory control over worker health and safety, it interacts with other government agencies in carrying out its work. The federal Environmental Protection Agency (EPA), for example, is directly involved in such areas as the control of toxic substances, the regulation of insecticides and fungicides, and the disposal of toxic waste. Each state invariably has a state agency (or agencies) that may have the authority to implement federal safety and health requirements within its borders, in addition to administering any requirements specific to that state. Therefore, if a museum does not have its own safety expert, a good place to start looking for help in identifying employee-related safety and health hazards would be the nearest regional or area office of the U.S. Department of Labor, Occupational Safety and Health Administration or, if known, the state agency that has the authority to implement OSHA requirements.
As a rule, OSHA provides free inspection services and instruction booklets to assist employers in meeting their obligations. Another source of help can be the museum’s insurer. Major insurers normally offer a range of risk management services to their customers, viewing this as an effective way to reduce claims. Under OSHA, employees have the right to file health and safety grievances with their employer or directly with the enforcement authority without fear of retribution, and failure to comply with the act’s requirements can expose an employer to civil and possibly criminal penalties. But on the positive side, a museum inspection that focuses on employee health and safety and on the accomplishment of required reforms usually has a twofold effect. It not only avoids employee injury claims but also contributes to a safer environment for visitors, thus reducing the museum’s liability exposure in this area as well.
Health and safety requirements can bear directly on the museum’s collecting activities in a variety of ways. Frequently targeted for safety inspection are mineral collections that may contain radioactive specimens. Trained health physicists can identify hazardous specimens and recommend risk-reducing steps. These steps may include the following:
• Safe disposal of any specimens found to be surplus to the needs of the collecting goals of the museum
• Proper housing and signage for all retained specimens while in storage
• Special attention to what is exhibited and to the adequacy of protective cases used to display specimens
• Mastery of simple monitoring techniques by staff
Other types of hazardous substances found in collection objects include arsenic, asbestos, cadmium, cyanide, formaldehyde, and lead. Experts can help identify the presence of such contaminants and recommend remedial measures. Displays and demonstrations of certain historic machinery and craft techniques have been known to run afoul of OSHA standards because required protective shields or safety equipment are not used. Historic buildings often contain lead-based paint and asbestos-contaminated building materials. Other museum locations that may need special attention in the search for safety and health hazards are conservation laboratories and exhibition fabrication shops.9
Another federal safety statute that bears on collection activity and employee health is the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), as amended.10 All museum collections, whether they be paintings, textiles, manuscripts, archaeological specimens, botanical specimens, or historic structures, are susceptible to damage or destruction by a variety of pests. In attempting to conserve their objects, museums use a variety of chemicals and techniques for pest control, and a good portion of such activity is now subject to government regulations. FIFRA, for example, requires that all pesticides be properly labeled and that consumer use be in accordance with label instructions. The act further provides that some pesticides (those labeled for “restricted use”) be applied only by a certified pesticide applicator or by someone under the direct supervision of a certified pesticide applicator. Thus museums must adhere to the following rules:
1. A museum cannot mix its own pesticides.
2. Labels on registered pesticides must be read to see if the use intended by the museum is one enumerated on the label.
3. Label instructions regarding procedures must be followed carefully.
4. If pesticides labeled for “restricted use” are to be applied by museum staff, a sufficient number of people must be certified as applicators to comply with FIFRA requirements.11
In many states, FIFRA requirements are enforced by state agencies under programs approved by the EPA. If a state does not have an approved program in place, enforcement is handled directly by the EPA. Here again, a museum should be familiar with local requirements and local enforcement authorities.
Also, OSHA requires employers of workers at most workplaces (including museums) where hazardous chemicals are present to inform workers and educate them about all hazardous chemicals that are in use. “Hazardous chemicals” is defined broadly and includes any chemical that poses a physical hazard (such as flammability) and/or a health hazard (such as lung irritation). Chemicals in all forms are covered: liquids, solids, gases, fumes. “Using hazardous chemicals” means “any situation where a chemical is present in such a way that employees may be exposed under normal conditions of use or in any foreseeable emergency.” Under this broad definition, hazardous chemicals can include most commercially used cleaning products, darkroom supplies, copying machine chemicals, exhaust fumes, artist supplies, glues, and the like. This particular OSHA standard spells out specific employer duties aimed at protecting employees:
• Proper labeling and marking of all hazardous chemicals used
• Maintenance of material safety data sheets on each such hazardous chemical (these data sheets must be readily available to employees)
• An ongoing information and training program for employees who are exposed to hazardous chemicals
• Designation of the people responsible for carrying out the on-site hazardous communication program
The Life Safety Code (NFPA 101), the product of the National Fire Protection Association, is a generally accepted standard code for establishing minimum requirements for a reasonable degree of safety from fire in buildings and structures. Each museum must conform to its local fire safety regulations, and these can vary from municipality to municipality. However, most local standards do not vary significantly from NFPA 101, and with a copy of that publication in hand a museum has a comprehensive source of reference. Several other NFPA publications treat both general and specific museum fire problems:
• NFPA 909: Code for the Protection of Cultural Resource Properties—Museums, Libraries, and Places of Worship
• NFPA 30: Flammable and Combustible Liquids Code
• NFPA 40: Standard for the Storage and Handling of Cellulose Nitrate Film12
For historic properties, the Advisory Council on Historic Preservation and the U.S. General Services Administration (both located in Washington, D.C.) usually have publications relating to fire safety in historic buildings. Another possible source of information on the topic of fire safety is the National Trust for Historic Preservation. Its main office is in Washington, D.C., but it also has a number of regional offices.
Frequently, a museum’s insurance company may have fire and safety consultants who can offer advice, and the local fire department or regulatory agency may provide similar assistance. In addition, professional fire and safety consultants can be retained to evaluate existing or proposed conditions.
1. In 1982, the Whitney Museum of American Art in New York City was faced with such lawsuits, caused by a light show featured on its premises.
2. In most negligence cases, the standard of care imposed is that of a “reasonably prudent man.” In other words, the individual charging negligence must demonstrate that the act or condition complained of was not something that a reasonably prudent person would do or permit.
3. If a museum is part of or associated with a governmental unit, local statutes and case law should be checked to see if the museum benefits from the doctrine of sovereign immunity. Under the traditional doctrine of sovereign immunity, a government cannot be sued (i.e., the king is above the law), but today, in most jurisdictions within the United States, this doctrine has been modified or waived by statute. These waiver statutes take a variety of forms, but they usually permit designated types of claims to be brought against the governmental unit as long as certain procedural requirements are followed. Also to be considered is the doctrine of charitable immunity. Traditionally, charitable organizations were not subject to suit on the theory that their charitable endeavors would suffer if private individuals were permitted to obtain large judgments. In most jurisdictions, this doctrine has been abolished or seriously modified. A museum may find it advisable to have a professional opinion on record regarding the applicability of both doctrines (sovereign immunity and charitable immunity) to its activities.
4. As a rule, more caution is expected of the museum when children are known to frequent an area or when the object or location at issue is one that would normally attract children.
5. At the same time, a review for any applicable access requirements for the disabled can be conducted (see Chapter XVI, “Access to the Collections”).
6. 29 U.S.C. §§ 651 et seq.
7. “Commerce” is defined to mean “trade, traffic, commerce, transportation, or communication among the several States or between a State and any place outside thereof, or within the District of Columbia, or a possession of the United States …, or between points in the same State but through a point outside thereof.” 29 U.S.C. § 652(3).
8. 29 U.S.C. § 654(a).
9. In the application of all health and safety standards, common sense is an important ingredient. Touring a museum sculpture garden, an OSHA official, who fortunately is an art lover, pointed out that several figures with extended arms posed possible “striking hazards.” Under OSHA standards, such hazards are to be marked with bright-yellow paint. To the museum’s great relief, no recommendation was made that the limbs of the figures be painted. However, not long afterward, the museum did confer with safety experts about the placement of barriers to direct walkways beyond possible points of contact.
10. 7 U.S.C. § 136, 40 C.F.R. pts. 150-180. This statute falls under the jurisdiction of the EPA.
11. If a museum has a fumigation chamber, the applicable regulations will most likely require that the chamber be operated by or under the direct supervision of a certified individual.
12. All publications are available from the National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02169-7471 (accessed Mar. 20, 2011, http://www.nfpa.org/).