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In a concert on October 5, a percussionist slammed a stack of chairs in to the bell of my Miraphone 184 CC (5 valve) while the tuba was sitting on my lap as I was in a chair, on stage, as I was directed to be by the conductor during reset (moving the grand piano off the stage). I am a freelance musician, recruited by the small University to fill out their Orchestra. They do not have enough students in the program to fill every slot in the orchestra so about 12% of the players are freelancers from the area.

The damages to the horn are in the bell, including the wreath. The professor in charge of the orchestra and this concert has said he wants to fix the horn by taking it to an unknown (but respectable) repair guy in the area. I had just gotten the horn back from Dan Oberloh where he tweaked the horn for me, moved the fifth valve to thumb operation and took some denting out of the bottom bow. Since the damage to the horn involves the "wreath" on the bell and since it was severe enough to also bend the bell back somewhat (if set on its bell, the horn rocks) I think I should have Dan repair it but that will take it out of my hands for several months.

The student, while contrite, has not offered an apology to me for it. The professor is upset with me because as the kid approached me in the Green Room, after the event, I told him: "Anyone with half a brain would know better than to slam a stack of chairs across a stage with instruments on the stage." He says I should not have called the student "stupid," which I didn't.

I don't think the horn can be repaired or brought to its original condition, do you? I also think that, technically, I was assaulted.

So, I have these question of the tuba community:

1) Should I let the repair go to the person chosen by the University?
2) What is the appropriate action to the student? for the student toward me?
3) Do I have the right to chose the repairman and the associated transportation costs (it involves 700 miles of driving over 4 days) as auto repairs are demanded in this state?
4) if the horn can not be repaired so the damage and any trace of it is not erased, should i demand they replace the horn?

How would you handle this situation? I am not trying to take advantage of either the student or the school but what do I do? What do I demand?

Thanks

And now, the rest of the story

On November 26, preparing for a rehearsal, as I was sitting in the back, warming up, a large (20 x 24') projection screen was dropped on my head and I suffered a mild concussion. I did not fall to the floor. Instead, because I was holding a tuba, I was braced against falling and, when I came to I got up and got to my case and left the rehearsal. The next day, as I was walking my wife's service dog (the dog would not separate from me, as sign of concern) my neighbor, Fouts, someone with knowledge of football injuries, saw me on the street, put me in his car and took me to the ER for assessment and a CAT scan. I have no permanent injury. Cost: $4,100.

The University messed around with their chosen tech who finally told me he could not guarantee his work would make the horn as it was and the University finally offered three choices, none of which got the horn fixed without at least 18 months delay. I finally told them to buy the horn, fix it and let me decide it I wanted to buy it back. They okayed that after the Christmas break, on Monday of this week. I am awaiting the check. They also offered to pay the part of the ER visit not covered by Medicare and my supplemental insurance. The original instructor was taken out of the discussion and it was settled with the Music Department head and with his superior.

When the checks arrive, I will consider the matter done but I have lost what was a good place to play before some young Turks decided they would revolutionize the Music scene at that school, regardless of the cost and regardless of who got hurt.

I thought some of you might be interested in the outcome. I now have a Hirsbrunner HBS-192 (I once owned an HBS-19) and find it works very well for what I do, if somewhat heavier. Oh, yeah, the kid and the professor have NEVER apologized for any of this. Sigh!

Thanks.

Hi some photos of the damage would help.


In Ireland the owner has the final say on who repairs their property and a loss adjuster will be called in if the costs of the repair appear excessive.

Given that there has already been some unhappiness expressed by the professor over verbal exchanges I would recommend that you stick to emails or letters from this point on.

If it was my tuba I would expect it to be repaired to my satisfaction.
I would be willing to meet and discuss the repair with their technician and I would expect to be shown samples of his/her work and or testimonials before allowing or not allowing them to work on it. I would also ask their technician to give an estimate of the cost of the repair and their turn around time for it.

Do you have a backup tuba?
If no does the college or repair person have a suitable loaner?
Are you prepared to give up on the gig?

If a suitable loaner can be found and if Dan can price a repair from photos I would send it to Dan if the college agrees to meet the costs.

Worst case result that I would settle for would be the amount quoted by their technician in cash and the loan of a suitable tuba while its away being repaired by Dan with me paying the balance if any.

I personally would not try to change what appears to be an accident caused by inexperience into assault unless there are aspects of the event that you have not shared with us.

First, this totally sucks, and of course, I'm on your side.

A few opinions, which maybe will be helpful to you:

From your description, you were not assaulted (you weren't injured, right?). Was this done with the intent of hurting you, or was it a mistake (no matter how stupid it was)? I don't think he meant to hurt you, he just did something stupid. You did suffer damages, but there was no malicious intent (like "hey, watch me wreck this guy's tuba...").

Would the school's insurance cover something like this (especially if he is a student)? I'm not sure what the terms of that would be, but isn't this what liability insurance covers? Or is personal property not covered? (Remember that old Chris Rock bit? "Insurance should be called "in case s--t," because that's when you need it... in case s--t happens!"). Your homeowner's insurance might even cover it too, if you don't play for money. (I'm assuming the obvious, that you don't have a policy for your tuba).

Good news -- it seems like tuba bells can be pretty trashed and still be repaired to be in good shape. Even with moderate damage, your bell is going to be repairable. Yes, Dan Oberloh can make it look great, but bell repair isn't something I would classify as a Dan-only project. Actually, you might do better to NOT have it buffed, sanded, and refinished, that could negatively affect the bell more than just repairing it.

More importantly, you would only be owed the cost for repairs. The legal responsibility is only to be "made whole," which means to cover the costs of the repairs, not the cost to replace the item (or, use the apple analogy -- suppose I'm walking down the street eating an apple, and someone take the half-eaten apple out of my hands and throws it on the ground. Does that person owe me a whole apple, or a half apple? [the answer is half-apple]). I mean maybe you could get a new bell out of it if it's totally trashed, but from the description you give, I'm guessing you'll maybe get a few hundred bucks to get it fixed, and where you go should be up to you. Also, if there is any lost income incurred from not being able to use the tuba, that counts in your favor too.

Worst case, get it fixed on your own and then take him to small claims court. It might not be worth the time or effort, but sometimes when people are served papers, they change their mind about settling out of court.

Sorry this happened to you, it sounds like one of those lousy situations where as the victim, you'll just end up with a little cash to make the problem go away.

Good luck!!

Sorry to hear about the damage. This is a touchy situation to be sure.

bill wrote: I don't think the horn can be repaired or brought to its original condition, do you? I also think that, technically, I was assaulted.

I'd be really surprised if it could not be repaired or brought back to original condition. It is only a matter of time and money.

No, you were not assaulted. Your instrument was damaged in an accident. The accident may have been caused by negligence, but that doesn't turn an accident into an assault.

bill wrote:
1) Should I let the repair go to the person chosen by the University?

If I were in that situation, no, I would not do that. I would try to have a respectful, calm conversation with the professor that offered to have the University fix it, but would try to negotiate for the repair person of your choice to work on it. That's kinda generous, actually. I don't see how it is really the University's fault as a whole...it sounds like one kid made a bad judgement call and accidentally damaged your instrument.

2) What is the appropriate action to the student? for the student toward me?

That isn't for you to decide. You have no authority over the student and have no place to demand or expect any sort of disciplinary action. All you can do is vote with your feet...either keep playing in the group or walk away if you can't stand it any longer.

3) Do I have the right to chose the repairman and the associated transportation costs (it involves 700 miles of driving over 4 days) as auto repairs are demanded in this state?

You have the right to ask for this but it doesn't mean that the University is going to go for it.

4) if the horn can not be repaired so the damage and any trace of it is not erased, should i demand they replace the horn?

Good luck with that one. From where I'm sitting, it seems that It would be HIGHLY unlikely for that to happen. I would expect a fight from the University if you're seeking that outcome.

How would you handle this situation? I am not trying to take advantage of either the student or the school but what do I do? What do I demand?

First, I would talk with the professor that offered to have the University handle the repair. I would ask about being able to take the instrument to the repair person I selected and be reimbursed by the University for costs (get that in writing if they agree). If not, I'd let it go as an accident and either live with the damage or get it fixed to my satisfaction at my cost. I would not bother doing a lawsuit, going to small claims court, etc. over this. It will likely be more time, money, and trouble that it would ever be worth and you may not actually win at all or get the outcome you're going for. And I wouldn't expect to be asked back to play any more tuba if I took the University and/or a student member to court over accident damage.

Despite what you might feel now, I'm pretty confident in saying that the kid didn't damage your instrument on purpose. You indicated that despite not actually apologizing to you that you think he feels bad...he probably does. I agree that he should have at least apologized to you, but he didn't and you can't change that now.

Thanks for the input, so far. A couple of things. 1) this tuba, as with all my 7 instruments, is insured. But this is the only CC I have. 2) The professor does not think the kid did anything wrong but does feel, so far as I can tell, that he, himself, contributed to the chaos that led to the kid slinging the chair stack across the stage. 3) The professor will take the horn to Dan if I am not satisfied with the repair he wants his person (not anyone he knows but someone local recommended to him) does. I maintain that, if I can see the repaired area, it is not satisfactory. 4) I don't know if Dan will even take the horn for repair if it comes to that but I respect Dan's work and the time it takes him to get to the work. 5) Assault is not a matter of injury, in this state. That is called battery. I don't want to get in to any of that but I happens to be the law here. Three of my 6 siblings were or are lawyers as are a couple of nieces. I don't want to go to court; they have taught me well, to settle.

I don't want to walk away from the gig and I do play for pay and am a life member of the AFM.

I am really concerned about the difficulty of repairing the bell Garland either by rolling it out or by replacing it, if necessary. I have never seen that done correctly to a Miraphone.

I would appreciate more input; you guys are the only group of people with the knowledge to comment on this and give me perspective.

bill wrote: I don't want to walk away from the gig

Considering that statement, the only advice I can give you is what I would do in the situation. (And obviously I am not you.)

If it were me, I would get the bell repair done at the place the professor is offering, make my concerns about the garland clear to the repair technician, and live with the result even if it is not cosmetically perfect.

Everybody has their own placement on the scale of what they're willing to live with vs. what they will raise hell about (with its accompanying impact on interpersonal relationships). The above suggestion simply reflects my own personality and where I fall on that scale. It has worked out OK for me. The times when I've let myself tip to the other side of the scale, I've almost always regretted it.

Uncle Buck wrote:

bill wrote: I don't want to walk away from the gig

Considering that statement, the only advice I can give you is what I would do in the situation. (And obviously I am not you.)

If it were me, I would get the bell repair done at the place the professor is offering, make my concerns about the garland clear to the repair technician, and live with the result even if it is not cosmetically perfect.

Everybody has their own placement on the scale of what they're willing to live with vs. what they will raise hell about (with its accompanying impact on interpersonal relationships). The above suggestion simply reflects my own personality and where I fall on that scale. It has worked out OK for me. The times when I've let myself tip to the other side of the scale, I've almost always regretted it.

Best advice I've heard. If the tech thinks the garland won't be near-perfect... or it turns out to be less than your expectations... I have a 99% perfect Miraphone 184 bell that I'll make you a good deal on. The bell has a 14 1/8" flare and an overall length of 24 5/8".

bill wrote:5) Assault is not a matter of injury, in this state. That is called battery. I don't want to get in to any of that but I happens to be the law here.

Hmm ... where would "here" be?

Assault and Related Offenses, 2011 Oregon Revised Statutes, Chapter 163, Offenses Against Persons

ASSAULT AND RELATED OFFENSES

Revised Code of Washington, Chapter 9A.36 RCW — ASSAULT — PHYSICAL HARM

Idaho Statues, TITLE 18 CRIMES AND PUNISHMENTS, CHAPTER 9 — ASSAULT AND BATTERY

California Penal Code, Section 240

No intent to commit physical bodily injury = no assault.

I don't want to walk away from the gig

You may not have the choice if the prof thinks your "If I can see the repaired area it's not satisfactory" stance is unreasonable [it is] and decides you're too much of a potential headache to deal with going forward.

Based on my knowledge of the ORS from a user standpoint (28 years as a cop) there are no criminal charges that fit your event. I defer to civil and tort experts.

I don't know any Portland area repair guys, I do know a few in Eugene, and if the Prof is willing to have you take it to Dan Oberloh, I'd consider the balance of horn time away vs. known quality of work.

Getting a satisfactory apology/response from the student isn't going to happen. Let that go, since you don't want to let go of the gig.

pgym wrote:

bill wrote:5) Assault is not a matter of injury, in this state. That is called battery. I don't want to get in to any of that but I happens to be the law here.

Hmm ... where would "here" be?

Assault and Related Offenses, 2011 Oregon Revised Statutes, Chapter 163, Offenses Against Persons

ASSAULT AND RELATED OFFENSES

Revised Code of Washington, Chapter 9A.36 RCW — ASSAULT — PHYSICAL HARM

Idaho Statues, TITLE 18 CRIMES AND PUNISHMENTS, CHAPTER 9 — ASSAULT AND BATTERY

California Penal Code, Section 240

No intent to commit physical bodily injury = no assault.

I don't want to walk away from the gig

You may not have the choice if the prof thinks your "If I can see the repaired area it's not satisfactory" stance is unreasonable [it is] and decides you're too much of a potential headache to deal with going forward.

What pgym said. The White Elephant in the Room nobody has asked: what are we talking to fix it? $$$? $$$$? (yes, I know the variables: repair what's there, replace with a good used one like mentioned above? Brand new from Miraphone? or a 3d party vendor? Dan's labor compared to the proffered fix?) That will be a factor in determining the course of action civilly.

If Dan's estimate is higher than their guy's, why not just take the money they would have paid to their guy, and you add in the difference, and take it to Dan?

The difference is that the person who hit you doesn't tell you where to take your car... your insurance company does. And they typically have a very long list of options (or, just give you the check and you figure it out on your own). Depending on the repair estimate, it probably isn't worth paying the deductible and facing higher premiums for this damage.

It is not at all clear to me that the university is financially responsible for the negligence of a student. It would be a different story if the student were an employee or agent of the university.

If a customer rear-ends your car in a McDonald's parking lot, can you sue McDonalds?

bloke wrote:

Uncle Buck wrote:It is not at all clear to me that the university is financially responsible for the negligence of a student. It would be a different story if the student were an employee or agent of the university.

If a customer rear-ends your car in a McDonald's parking lot, can you sue McDonalds?

...which is why it might be a good idea to sue the professor, the student, and the school. A good judge should be able to sort it out.

- The student was careless, but
- The professor was in charge of class management, yet
- The university agreed to hire the plaintiff to come on campus and perform with the ensemble.

I can't tell to what extent your comment is tongue-in-cheek. But to the OP's request for advice, and with the skeletal facts presented, the honest truth is that one potential result of rejecting the professor's offer (or rejecting the offer and filing a lawsuit) could be that the OP would end up with nothing. It's possible the only recourse would be against the student.

Possible that the OP would win, too. But neither outcome is as certain as the offer on the table.

Uncle Buck wrote:

bloke wrote:

Uncle Buck wrote:It is not at all clear to me that the university is financially responsible for the negligence of a student. It would be a different story if the student were an employee or agent of the university.

If a customer rear-ends your car in a McDonald's parking lot, can you sue McDonalds?

...which is why it might be a good idea to sue the professor, the student, and the school. A good judge should be able to sort it out.

- The student was careless, but
- The professor was in charge of class management, yet
- The university agreed to hire the plaintiff to come on campus and perform with the ensemble.

I can't tell to what extent your comment is tongue-in-cheek. But to the OP's request for advice, and with the skeletal facts presented, the honest truth is that one potential result of rejecting the professor's offer (or rejecting the offer and filing a lawsuit) could be that the OP would end up with nothing. It's possible the only recourse would be against the student.

Possible that the OP would win, too. But neither outcome is as certain as the offer on the table.

The other consideration is that the guaranteed result of rejecting the prof's offer and filing suit against any of the parties (prof, student, univ) is that the OP will be blacklisted from subbing by the music dept (assuming he hasn't been already), and may very well find himself blackballed by other groups as word gets around, which it inevitably will.

bloke wrote:I fail to understand why there would be future interest in working for the organization who treated me that way.

The OP has already stated that he DOES have that future interest, so all of my advice has been premised on that assumption.

bloke wrote: - when stuff that I need and use is torn up, I take it to the best person, and ignore (in particular) the advice of those who were responsible for it being torn up.
- when I'm due recompense that is not forthcoming, I've learned that a well-organized case, a filing fee, and a clearly-presented testimony serve me well.

Good advice with one caveat - from the sparse information in this thread it is not at all clear (to me at least) from whom the OP is "due recompense."

bloke wrote: ...yet you view my suggestion of filing against the school, the professor, and the student as possibly a "tongue-in-cheek" suggestion...(??)

I guess I was wrong on that one (sorry ), but I still question the value of suing everybody, based on:
- The OP's (photo-less) description of the damage (the horn still stands on its bell, but wobbles); and
- My gut-check estimation of the dollar value of the difference between a bell and garland repair done by Oberloh and one done by the local technician (who the OP described as unknown to him but respectable). Obviously an Oberloh repair is worth more. But the OP (not me ) has to decide whether the difference is worth the collateral results (including the potential of losing the lawsuit and getting nothing from the university).

The best part of this story is learning to expect stuff like this to happen and to govern ones' self accordingly at the event.

Bump for conclusion (read the edited Original Post).

Oh man… quite an unfortunate saga. Hope all is resolved by now.

After my horn got damaged once at a club I used to play at often (the owner let people on the stage between sets) I refused to work there again. I told the owner it's not a joke, he's gotta look after people who are working for him and keep the work environment safe… for people as well as their precious tools of the trade.


Sadly even with the most precautions, Dents do happen. There's simply no way around it. If you have your horn out in the world making music on it for the people, it's gonna get dented.


True story:
Once upon a time in a cramped chamber orch gig, a trombone player's stand fell and scratched a cello. Twice. The cello player started to weep. The adjacent french horn player turns and says comfortingly: "Come on now, don't cry. That's nothing a good belt sander can't fix."