Simon Doonan's "traffic-stopping" window displays and tort liability

Posted by Charles Colman

While reading WWD's coverage of Dennis Freedman's assumption of Simon Doonan's role as Creative Director of Barneys New York, I had a flashback to first-year Torts. WWD paid a mini-tribute to Doonan, calling his window displays "traffic-stopping," which for some reason brought to mind the very first case we read for our very first class with the unspellable and unflappable Andrzej Rapaczynski: Hammontree v. Jenner, a case arising from the explosive mix of an epileptic seizure, a 1959 Chevrolet, and the display window of a bicycle shop.


In Hammontree, the seizure was not induced by the display in the window of the bicycle shop, but one has to imagine that window displays as striking as Doonan's have caused traffic accidents on at least a handful of occasions. As it turns out, they have -- for some reason, usually in Georgia. Thus, as the Georgia Court of Appeals noted in the delightfully named Wright v. Piggly Wiggly, "[i]n some cases, a window display has been held to be sufficiently distracting so as to constitute the proximate cause of injuries sustained in a collision with an otherwise patently observable obstruction."


In a 1990 case that involved severe injuries caused by an elderly woman's unfortunate encounter with slippery dog poop, the California Court of Appeals noted that "[a]n abutting owner has always had a duty to refrain from doing an affirmative act which would render the sidewalk dangerous to the public." In this instance, the offending poop was not "on the storeowner," so to speak, but the court explained that a storeowner could be held responsible for other "affirmative acts," like displaying his goods in too eye-catching a manner: "in keeping safe the floors of their premises storekeepers must take into account that shoppers may be distracted by attractive displays of wares."


In making this statement, the court was actually quoting a 1936 case, in which the California Supreme Court cautioned:


"The fact that the attention of persons who visit public markets is attracted by the display of the wares offered for sale and more or less absorbed by the transactions which they have in mind would seem to increase the necessity of exercising care to the end that the floor spaces and aisles allotted to the use of customers should be made safe and kept fit for such purpose."

(Emphasis mine.) In other words, the more attractive your displays, the cleaner your aisles better be.


On the other hand, the California Court of Appeals has fairly recently written that "[m]otorists are routinely exposed to a melange of off-road distractions which may include sporting events, low-flying aircraft, billboards, Christmas displays, rock concerts, brush fires, or unusually or scantily attired pedestrians." (Emphasis mine.) See also The Naked Cowboy, who has recently become quite litigious in his own right.


The court in the sporting event case felt the driver bore full responsibility, waxing classical: "Travelers who, in the manner of Homer's ancient Argonauts, must sail past Sirens, are obliged to exercise reasonable care in the navigation of their craft and resist being seduced by sights and sounds."


Let us hope, for Dennis Freedman's sake, that his Barneys window displays don't cause anyone bodily harm, and that if they do, he will find himself in front of a judge with similar literary proclivities.