In what sounds like accidents seen right out of a torts final, Artist Anish Kapoor created a “Descent Into Limbo” to look like a black circle painted on the ground. The problem is that the artistic effect would have been lost with barriers, but the lack of barriers led to a man falling into the eight-foot hole at the Serralves Museum in Porto. It is a classic conflict between art and law with one demanding purity and the other demanding protection.
Kappor is well-known in Chicago given his work “Cloud Gate,” which has been universally dubbed “the bean” by Chicagoans.
The art piece looks like an Acme hole for road runner.
The man in his 60s was treated at the hospital.
This exhibit does have warning signs and an employee remains with the exhibit to keep people from getting too close. However, the effect of the piece would be ruined with a physical barrier. The question is whether such artistic concerns should trump safety concerns. While I am more sympathetic with the artist, it could be claimed that a single employee is not a reasonable caution and many people may not read the warning, including children or people entering with crowds. We have also seen how cellphones create an additional distraction in such cases.
Torts often looks at such conflicts under the “Hand Formula” of B<PL (with B as the burden to avoid the accident; P is the probability; and L is the loss). If the B is less than the PL, there is a negligence. The formula is more difficult when balancing artistic or aesthetic costs.
What do you think?