Author Topic: NEED LEGAL ADVICE!!  (Read 1326 times)

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Offline sdphoto

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NEED LEGAL ADVICE!!
« on: November 07, 2014, 06:31:06 PM »
I apologize for neglecting to post an introduction... My fiance and I have a very bizarre predicament and would love some advice ASAP! We are both professional photographers, each with our own businesses. We work together on weddings, but perform other shoots independently.

He received contact through his business from a woman several days ago wanting a family photo session for her birthday. He sent his price list, she paid the retainer, and they agreed upon a time - today at 4:00. The shoot location is a little over an hour away from where we live. He always leaves early enough that he will arrive at least 30 minutes ahead of time. Always. Well, once he was about 20-30 minutes into the drive, several accidents popped up on the freeway and he became stuck in traffic. He called the client to let them know he was going to be about 15 minutes late and the woman absolutely FLIPPED OUT on him. She was yelling at him, saying how he was unprofessional and that she would "release the dogs" on him and would get all of her family and friends to write bad reviews about him and bad mouth him on every platform they possibly could.

He offered to refund her retainer, reschedule, or simply show up whenever traffic allowed, yet she continued the verbal abuse. He called me after this exchange to ask what he should do. I said I wouldn't take the verbal abuse and that he should just return her retainer and that's that. If she's going to berate him over having the courtesy to call an hour before the appointment to say he will be late, she's going to treat him like trash on the job and it's simply not worth it. There was no contract and he was doing all he could.

After we spoke, he called her back to say that, given the fact that traffic is getting worse, he would have to refund her as it will be dark by the time he gets there and the session won't even be able to take place. If she wasn't already going nuts on him, she got worse. She said she was a judge and she was going to sue him for breach of contract (there wasn't one for such a small, inexpensive session) and for aggravation. She said she's going to sue for travel expenses of all of her family because they apparently flew in from all over the country just to take this photo (something that was not relayed to my fiance at all).

He's still on the road, driving literally 5 mph and is about 30 miles away from the location. It's already almost too dark to shoot and by the time he gets there, it'll be pitch black. He left with more than enough time to get there, but there are currently 5 accidents standing between him and the session. That's just something you can't prevent. What should he do???

Offline Houston George

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Re: NEED LEGAL ADVICE!!
« Reply #1 on: November 07, 2014, 07:54:24 PM »
I think it's pretty simple that all he can do is refund anything she's paid and offer an apology. Beyond that, she doesn't have monetary damages and I doubt her family's travel expenses are a legal consideration since they aren't his client, she is. But I'm no attorney.

For future consideration, a 30min cushion isn't much for an hour+ drive IMO. I have only traveled considerable distances for shoots a hand full of times, but when I have, I am absolutely paranoid about being late and I allow at least three times what I think the trip will take just in case the scenario happens like you described. I would rather sit in my car listening to the radio and playing games on my phone for two hours than have to make the dreaded phone call your fiance did.

Houston

Offline Todd Muskopf

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Re: NEED LEGAL ADVICE!!
« Reply #2 on: November 08, 2014, 07:46:41 AM »
Kiss her ass.  Don't argue.



Things I wonder about...

Taking a job an hour away?  I hope there was compensation for drive time.  Where is this?  5 accidents?  Is this LA? Was there a snowstorm?

What's the scenario?  Why can't it be rescheduled? 

If you think you're going to be sued, then get Highway patrol reports documenting the accidents which caused the backups.  You'll need them.

If your husband is found negligent, then yes, he could be liable for restaging and reshooting the event, including travel costs for the sitters.  I've heard of photographers who botched a wedding paying $20000 to restage it.


Offline Jeff Behm

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Re: NEED LEGAL ADVICE!!
« Reply #3 on: November 08, 2014, 08:47:04 AM »
Yeah, first, living on the outskirts of the greater DC area as I do, one must always leave time for accidents.  So for an event about an hour's drive away, I'd have started out about two hours ahead.  It's just life, and is one reason why prices here are higher compared to other areas for the same work.  More time is required.

Second, as Todd said, get police reports to corroborate the traffic snarl, refund her money, apologize profusely, don't argue (but don't say, admit or agree to anything that swings liability to you), offer to shoot with no session fee.  A suggestion: If possible, do this after she's had a chance to calm down, like the day after if it's not too late.  Some people fly off the handle then later regret it and are more reasonable later.  Not saying that'll happen for sure, just based on past experience in my own career.

The nature of the event being photographed - her birthday, probably distant family present, dressing up, etc - probably stressed her out, and now she has to face her family feeling embarrassed.  As bad as you two feel about the way this turned out, don't lose sight of how she feels.  She may have coerced reluctant family, made it a big deal for a family portrait (which we photographers KNOW is a big deal) and a lot of other stressors we don't know about.  Those don't excuse her behavior, but may be behind it, and after all, he failed to arrive, regardless of circumstances.  "Fault" may not be his, but failure to appear is a fact.

If it continues, consult an attorney, just in case.  We're not lawyers, after all, just photographers like you.

Offline Darren Cassese

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Re: NEED LEGAL ADVICE!!
« Reply #4 on: November 08, 2014, 12:37:55 PM »
I'd have shown up no matter what.  Even a photo done in the dark for free is better than not showing at all given the circumstances the client describes.  And now trying to avoid a lawsuit...  Perhaps if he'd at least shown up she would have calmed down a bit and something agreeable could have been salvaged.  Abuse over the phone is more likely than in person.  At least showing up, they can look him in the eye and see he is sincere. 

Always keep in mind that the overall technical quality of a family photo is usually not as important to most people as just simply getting everyone together for something half-decent.  The client apparently got through 1/2 the battle and is obviously frustrated the rest simply fell apart. 

I hope this works out for you with minimal damages (monetary and via reputation) as it is very unfortunate and could potentially happen to the best of us despite all preparation.
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Offline Joe Federer

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Re: NEED LEGAL ADVICE!!
« Reply #5 on: November 10, 2014, 02:13:02 PM »
I'd have shown up no matter what.  Even a photo done in the dark for free is better than not showing at all given the circumstances the client describes.

Same here.   I would have found a way to make a photo happen -- let the argument be about artistic merit or quality or something...  but at least still give them something. 

As for leaving ahead of time -- I tend to give 2x the time it actually takes, plus 20-30 minutes.   So if it's 15 minutes away, I tend to leave about an hour ahead of time.  3 hours... I leave about 6.5 hours ahead of time.  I do this more for break-down reasons and getting there early enough to 'scout' (often time pre-day-of-scouting fails due to day-of changes.... like construction or events or something) so that I'll have enough time to get there even if I have to call a cab and transfer all my gear.
... but that is for wedding shoots.     For personal, relatively informal, family shoots?  I leave to arrive maybe 10-15 minutes early...  it's just not a once-in-a-lifetime event...

I'm with the rest of the group -- apologize, refund, offer a free reshoot... all while smiling.  But also cover your butt by getting the traffic reports.

Offline Todd Muskopf

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Re: NEED LEGAL ADVICE!!
« Reply #6 on: November 11, 2014, 07:22:35 AM »
I hope she comes back and lets us know what happened.

Offline Joe Federer

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Re: NEED LEGAL ADVICE!!
« Reply #7 on: November 12, 2014, 11:22:10 AM »
ditto

Offline Ed Shapiro

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Re: NEED LEGAL ADVICE!!
« Reply #8 on: November 14, 2014, 11:23:24 PM »
OK- I admit being paranoid about lateness of any kind and I overkill when it comes to travel time and advance preparation.  When I have a distant location job of any kind I consider it a full day’s assignment and I charge accordingly. I like to get in a few hours before the starting time and get the lay of the land, scout locations (even within a home or garden environment.  I like plenty of time to set up my gear, do my metering and tests and start the job exactly on time or even slightly earlier.  Perhaps theses habits come for the fact that I started my career in New York City where traffic is insane and all kinds of unexpected delays may occur.

I never do any job without a contract regardless of the size or scope of the assignment because all of my contract forms, agreements and work orders have stipulations to protect me and my business in the event of unforeseen circumstances.  I guarantee all of my service and photography as to photographic quality and workmanship but limit my responsibility to moneys received.

If you think you are going to be subject to a lawsuit the best approach is to contact your lawyer and explain the circumstances and get his or her professional opinion.  Of course, laws can be very different in various jurisdictions on only a qualified attorney will know all those technicalities.

My questions to my lawyer, in this case, would pertain to “time is of the essence” issues.  Obviously, if you were contracted to do a wedding and somehow you failed to “get to the church on time” you MAY be held liable for breach of contract and damages because it is IMPLIED that time IS of the essence because basically this is not a repeatable event.  A birthday gift- who knows?  If the client had hair and makeup done and took time off from work for her portrait session again- who knows?  That’s where the lawyer comes in- he knows. A judge may find for the plaintiff if he or she deems that compensation is in order. If the occasion was a birthday PARTY, that may be another story as well. There is also matter of non-performance- again, theses are question for your lawyer.

Of course, if you did not deliver your services; the customer is surely entitled to a full refund and an apology, however, I smell a rat!

I suspect that that particular client is insane or at least irrational. I don’t think she is a judge!  Her reaction is not becoming an officer of the court- shouting, threatening and that kind of outrageous behavior.  I think that a real judge would not take a chance with her reputation regardless of her being disgruntled with your service. In some jurisdictions, uttering threats of harm (setting the dogs upon you) is a felony in itself.  A judge would know that setting her dogs upon someone who is not a threat to her safety or the integrity of her property is considered assault and would also be grounds for a civil lawsuit besides being a criminal offense.

I would suggest that you do gather evidence pertaining to those traffic accidents and delays so as to prove mitigating circumstances beyond your control and speak to your lawyer ASAP. A consultation with your attorney is money well spent as it may preclude other unnecessary expenses, loss of time and you will sleep better.

Ed     





       
Ed Shapiro
The Hintonburg Studio
Ottawa, Canada

Offline Jeff Behm

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Re: NEED LEGAL ADVICE!!
« Reply #9 on: November 15, 2014, 07:54:41 AM »
all of my contract forms, agreements and work orders have stipulations to protect me and my business in the event of unforeseen circumstances.  I guarantee all of my service and photography as to photographic quality and workmanship but limit my responsibility to moneys received.

This is so important, and yet so often overlooked.  Especially the part about protecting ourselves and our businesses from unforeseen circumstances.