Lulu Pokinghorn - Absence of malice?

The following is based on a presentation given by the author at the 29th annual Turf & Landscape Institute in Anaheim, CA.

In reflecting on the predicament of the clients served by our industry, I am more and more convinced that we need to wake up and see that we are driving them in directions where they will choose to have as little to do with us as necessary. Disenchanted clients range from the hard-ball sophisticates to the native idealists, who still want to believe that in toady's world people, who care enough to adequately care for plants, will also take care of their clients. It is our own ethical transgressions that are creating this sitiuation.

Why is this? The eight reason cited by the Interior Plantscape Association 10 years ago for the use of live foliage indoors still hold true today. Most of these benefits are not applicable to silk plant usage.

The prevalence of silks forces us to ask pressing questions: Where did we change? Did our increased ecological awareness and our reactions against a plastic, disposable culture really lead us to the point we're at now, with clients screaming for silk plants on their desks in 1988? Were all those technological advances in lighting and window spanning capabilites designed to present us with the perfect location for a silk tree? Psychological needs and aesthetic qualities certainly weren't major reasons behind the shift to silks.

Functionally, we can use silk or live, but are the economic benefits to the client (in terms of long-term labor costs) sufficient enough rea- son to switch to silks? If this were true, that creeping Charlie on the White House mantle behind Ronald Reagan certainly should have been switched to silk long ago.

Negligence

The reason thet clients are turning to silks is that we've become so concerned about taking Icare of ourselves. In some cases, we've specialized in how to make our plants feel good, but not our clients. In others, we haven't even done that; we've given these clients few reasons to remain keen on the green industry. These clients turn away from us because they failed to protect themselves against those nice and well-meaning plant people who seemed genuine but cost them thousands of dollars.

Furthermore, we've perpetuated that lack of understanding, believing that the less we teach them about how to protect themselves, the better off we'll be. It's an old contractor's game that has made contracting what it is today.

Our clients are just beginning to shove back. Whereas in the past we talked about insurance, workers' compensation and city taxes at the trade shows, we now swap stories about lawsuits. Such lawsuits often stem from negligence. Negligence is the failure to use the reasonable care that a person of average prudence would use in a particular situation or circumstance.

Basically, negligence has three components: (1) the assumption that you have a duty to someone; (2) you breached that duty by either doing it incorrectly or by just failing to do it at all; and (3) actual damages were incurred and that particular negligence was the proximate cause. Professional standards set by associations and experts with years of expertise within the community are relied upon to backup performance standards.

Interior landscapers, like other contractors, are now required to carry significant insurance to protect the client against well-meant actions that have substandard outcomes. The need for insurance is obvious. Consider the following:

An interior landscaper had installed a large Ficus on a mezzanine. When it died, it was determined that the most viable means for removal was carving it into small pieces with a chainsaw during off-hours. In the middle of the night, the smoke from the chainsaw set off the smoke detectors and automatic sprinklers, and one weary interior landscaper ended up buying the hotel all new carpeting.
Just as obvious is the case where a tractor was being used to haul soil into a mall. The tractor leaked oil, and all of the unsealed pavers and paving stones had to be replaced.
A case of negligence that's a little less obvious is the instance when a watering machine hose broke while being filled over a drain that apparently was clogged. The water then ran down the hall and down the conduit to the floor below, where it ruined some furniture. It kept going to the floor two stories down, where it encountered the client's $1 million computer. Concurrent negligence was the outcome.

There are various other kinds of negligence, which can be illustrated with particular examples. Several years ago, while visiting an installation, I was amazed that large Ficus retusa 'Nitida' were being treated for a substantial mealybug infestation with tree injectors that were no more than 18 inches off the concourse and two feet up the trunks of the trees. Many times our ignorance in handling tools of our trade is reckless, indifferent, and hazardous negligence.

Consider another case. Your crew is on its way home at night when they discover that the lights have gone out on their vehicle. They continue to drive, resulting in an accident, which is legal negligence.

Comparative negligence differentiates between slight and gross degrees of responsibility. For example, large numbers of credenza plants are placed in baskets on mahogany counters according to the architect's specifications. The planters leak, and the maintenance team's failure to immediately notify the client of the substandard installation results in a sizable claim against the interior landscaper.

The story of the 15-foot Dracaena fragrans 'Massangeana' installed to industry standards in a home to be visited by Ronald Reagan can make us all a little nervous. Moments prior to Reagan's entrance, the plant toppled. (How to protect your plants from the Secret Service debugging team has yet to be included in the horticultural services manual of the National Council for Interior Horticultural Certification.)

But these are the stories of doing business. Insurance companies have protected both client and interior landscaper, although many clients fail to even seek proof of insurance, not realizing the potential for damage. Despite our exposure as a service industry. we are fortunate to have low workers' compensation rates and few actual claims. This is particularly impressive, given the miracles performed at the last hour while buildings are still unfinished.

Guarantee Failure

The real abuse perpetrated on our clients has stemmed from our contracts and our failure to warranty our product, even though we claim a 100 percent replacement guarantee.

For example, a hotel chain was recently involved in a drawn-out ordeal with its interior landscaper over the contract's replacement guarantee. The hotel manager felt the dead and sickly plants needed replacing, but the contractor disagreed. The manager wanted to cancel service but could not figure out from the interior landscaper's one-page contract how to do so, so he gave 30 days written notice. The interior landscaper claimed his contract called for 60 days notice, and so he sued for breach of contract. The hotel manager in turn filed a countersuit.

Now I ask you, given the hassles involved in this situation, why should that hotel stay interested in contracting for interior landscaping services?

In another instance, a hotel asked for an upgrade of its plant material. When the hotel gave the interior landscaper 60 days notice, as per the contract, the client's reward was erratic maintenance for several weeks.

A Lack of Concern

In yet another case, a client bought large specimen material from a grower and hired an interior landscaper to install the plants with the aid of the grower. The interior landscaper was to maintain the plants with no replacement guarantee, because the grower was available for consultation in the event of a problem.

The plants were put in large built-in containers with an irrigation system but no drainage. All parties agreed that this was not the best way to go but that it would work with a siphoning pump. The August 1988 interior landscaper was left to monitor the watering and all other maintenance but did not guarantee the plants.

After a month, the client received complaints about the prolonged noise of the siphon pump. The siphon was turned off, but the irrigation clock was never reset, and for two months the plants were allowed to sit in water and rot.

The interior landscaper defended himself by saying that he had no replacement guarantee. Yet I contend that we have a responsibility to maintain according to the industry's professional standards. When we can no longer do so, we must notify the client in writing. It appears that many interior landscapers feel that the less they have in their contracts, the less they can be hung for in the end. Some even feel that if they don't guarantee the product, they don't even have to send a technician to the job.

You might say "ridiculous" to these illustrations — the best firms in the industry have lengthy contracts that clearly spell out for the client how they can extracate themselves from service. But we're not talking about the best firms here. We are talking about those firms that, regardless of size, have successfully promoted the "sleaze" factor that, in the end, hurts us all.

Unfortunately, neither NCIHC certification nor a contractor's license (in states where interior landscapers are required to have them) provide clients with a measure of an interior landscaper's skill or responsibility. Unethical interior landscapers and those providing substandard work are able to obtain either of these designations, and competent, professional interior landscapers must compete with companies that have these seemingly meaningful titles.

There is no method for censure of interior landscapers who abuse these professional designations, but they are often the only criteria a client uses to gauge an interior landscaper.

Until we find a mechanism that certifies and continually upgrades our industry, we are going to find ourselves on the other end of the hard-ball sophisticates. The trust we were handed by virtue of our relationship to plants is quickly deteriorating.