Three legal concepts broadly govern issues that could involve a spa operator or aesthetician: negligence, strict product liability, and warranty. Within the first two is included the concept of warning. Under the law of negligence, if a person has a duty of care to another and their breach of that duty results in harm, then that person may be liable in damages. A duty of care is owed to customers of a spa or a salon to protect them from the normalhazards that accompany opening a premise to the public for business. Thus, hazards that give rise to the risk of a fall often include: spills, loose electrical cords, uneven floor surfaces, highly polished floors that become slippery, inadequate lighting, and inadequate or absent handrails on stairways. When a customer falls and is injured on business premises due to one of these factors, it frequently give rise to liability. These injuries give rise to liability because most can be prevented with the exercise of reasonable care. Hazards that are long standing or fixed such as uneven floors that can create trip hazards, poor lighting, or chronic poor housekeeping generally make for sound negligence cases if customers are injured tripping over one of these hazards, provided the shop owner had the opportunity to correct the condition before the fall. The strength of a claim based upon a spill may depend upon the length of time the substance was on the floor, the presence of a highly buffed floor surface on which the coefficient of friction drops to roughly the level of ice when wet, whether the operator knew or should have known of the spill, and the opportunity to warn of its existence and mop it up before a fall occurs.
The second area in which the law of negligence applies falls into the category of professional negligence. People who hold themselves out as professionals in a field, such as a doctor, lawyer, or aesthetician, have a duty of care to their patients or clients to exercise that degree of care which is expected of a person in that field of endeavor. For example, a doctor is expected to exercise the degree of care that would be expected of a family doctor, an obstetrician, or a plastic surgeon. The specialist is held to a higher standard of care than the generalist unless the generalist undertakes to perform the type of service that is usually performed by a specialist, in which case he may be held to a higher standard.
In the context of a spa, a person who is held out as a licensed aesthetician, massage therapist, or cosmetologist may be held to a higher standard of care than an untrained assistant, particularly when the aesthetician is providing treatments that require licensure or which involve chemicals or devices that require knowledge or training for their safe use.
While an aesthetician or cosmetologist would not be held to the same standard of care as a physician, if the spa offers services that border on medical treatment or even cross that line, liability may well follow on a similar basis if an injury occurs. If injury occurs when the aesthetician or cosmetologist provides services that cause physical harm because of the careless or incompetent manner in which they are provided, liability may also follow. It is certainly reasonable to think that the average consumer of spa services looks to the professional operators for knowledge superior to theirs in terms of the treatments they receive. It should be remembered that the Food and Drug Administration (FDA) does not conduct pre-market approval of cosmetics or chemicals used in spa treatments. It does have authority to take action against manufacturers who market misbranded, adulterated, or dangerous products if those products come to its attention. However, it is quite possible for these products to reach the market and cause harm before they come to the attention of the FDA. Professionals in the field should know of the hazards associated with the treatments they are rendering and the products they are using such as lasers, chemical peels, and hair treatments. The failure to regulate the use of tanning beds in the salon may pose a risk of long term liability if these devices become recognized as a significant source of skin cancer.
Using chemical treatments on the skin or for weight loss or other purposes requires the exercise of care so that customers are not injured. Virtually any chemical can be dangerous if it is used in excess, and it is incumbent upon the aestheticians and cosmetologists using them to have sufficient understanding of the proper methodology for application of these treatments so that harm does not come to the client.
On the other hand, if a patron is harmed by a device or chemical used in the spa because that product is dangerous or defective, the law of strict product liability may apply. In that circumstance, the designer, manufacturer, and seller of the product may be liable for harm caused by the defective product. A product is considered defective if it lacks any element necessary for its safe use. A product may also be defective if it does not contain adequate warnings. Some products cannot be made safe because, for example, they may contain chemicals that cannot be made safe for human use. Given existing alternatives and the elective nature of most beauty treatments, products containing unavoidably dangerous components should probably never be used. Other products, if used for too long or in excessive quantities, may cause an array of serious harms. In the event that a manufacturer is at fault for inadequately testing or negligently selling a dangerous product which causes harm, the injured person will usually pursue the manufacturer. However, because a seller is also liable, the spa operator may have legal exposure. This is even truer if the product comes from a foreign country and the manufacturer seeks to avoid jurisdiction in American courts. Then the spa operator may be the primary defendant. It is important to establish at the outset of a relationship with a supplier that manufacturers of products used in the salon and spa are willing to accept responsibility in court if their products
Fortunately, most situations involving spa treatments, beauty care, and cosmetics will involve minor harms or involve the failure of the product to do what it is advertised to do. Customers may not bother to assert claims in these circumstances because they are not worth it. However, a product that fails to deliver on an advertised promise to cause dramatic weight loss, promote younger skin, or remove blemishes may be the subject of a breach of warranty claim. To avoid these type claims, it is important to avoid the guarantee of results. The use of the term “guarantee” or even assurances that the product will accomplish a substantial if not improbable result may give rise to a legitimate claim for refund of money under a breach of warranty claim.
It should be understood that the terms “warning” and “disclaimer” are not synonymous. A disclaimer in which the spa operator states that she is not guaranteeing results or assuring the effectiveness of a product can be helpful in a warranty claim as long as some limited warranty is provided. However, if a product requires a warning for its safe use, a disclaimer does not fill the bill. A warning tells the user the hazard involved with the use of the product and the harm that may come from its use. It is designed to give the customer or the operator enough information to enable the product to be used safely or to make the decision not to use it. It has nothing to do with disclaiming responsibility for harm that comes from its use. A disclaimer of responsibility is never adequate to avoid liability where adequate care or adequate warnings are required to prevent harm.
Cosmetologists and aestheticians provide many desired services and should remember that in doing so they are relied upon by their customers to understand the potential hazards associated with treatments and products used in the spa. As such it is critical to understand the potential for harm associated with products or treatments and only use them when there is a level of confidence that they can be used safely and only when enough training has been undertaken to safely render treatments.
Thomas L. Gowen is a partner of the Locks Law Firm in Philadelphia. He handles complex negligence, professional negligence, product liability, brain injury, carbon monoxide and toxic tort claims. He is a graduate of Haverford College and Villanova University School of Law. www.lockslaw.com.