Visual Evidence

It’s often been said that seeing is believing, and this is certainly true in legal proceedings. Ever since movies were first allowed into a courtroom, film and video have provided a reliable way of capturing reality and presenting it as evidence. Who knows how many people have been convicted or exonerated on the basis of images on a screen?

In these two stories, Architects find themselves confronted by “video evidence” that may reveal either guilt or innocence. And neither is certain. 

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 Video Evidence

 It’s often been said that seeing is believing, and this is certainly true in legal proceedings. Ever since movies were first allowed into a courtroom, almost a hundred years ago, film and video have provided a reliable way of capturing reality and presenting it as evidence. Who knows how many people have been convicted or exonerated on the basis of images on a screen?

In these two stories, Architects find themselves confronted by “video evidence” that may reveal either guilt or innocence. And neither is certain. 

On a sunny spring day, several decades ago, a large engine oil tank was dug up and trucked off to a junkyard. A fuzzy amateur movie of the event shows the huge vessel being hoisted out of the ground, while three workers guide it onto the back of a flatbed. A murky brown liquid can be seen spilling from a breach in the tank and splashing onto the soil.

 Thirty years later, Magenta Homes, a housing developer, planning to build on the site, ordered an environmental assessment. The subsequent report determined that the site had, at some point, become seriously contaminated and would require extensive remediation. But the cause of this contamination was not known. Meanwhile, the incriminating amateur movie was collecting dust in a file box somewhere. It had never been viewed.

 And this is where the real trouble, the lawsuit, and our story begins. We call this slippery tale “OIL FILM.”

•••••

The facts bearing on this claim actually began nearly a century ago, when Elmville Meat Packers established a plant in southwestern Ontario. The majority of their industrial site was occupied by the factory, the parking lot and a trucking area. A maintenance facility for their fleet of trucks occupied the northeast corner.

In the 1990s, senior management decided to cut back their business, and concentrate on sausage production only. So, under the new corporate name of Savoury Sausages, they hired local architects Khalid & Cheng to renovate their building on a smaller footprint. This reduction would allow them to sever the northeast corner and sell it off. But first, they would have to clean things up by dismantling the maintenance facilities and removing the ancient waste engine oil tank.

30 years after the renovations and clean-up had been completed, an offer to purchase was presented by Magenta Homes, but . . . on the condition that an environmental assessment be conducted.

The investigation revealed serious soil contamination due to the presence of petroleum distillates—possibly carcinogenic—in sufficient quantity to render the site hazardous. Savoury Sausages Ltd. was extremely disconcerted by this finding and felt they had no recourse but to claim against Architects Khalid & Cheng and the General Contractors Murchie & Fairweather, for the cost of the cleanup: estimated to be roughly half-a-million dollars.

According to Savoury, the facts spoke for themselves. The site was contaminated, and the degree of pollution suggested that it could only have been caused by a major oil spill. If, as they suspected, the spill had occurred when the oil tank was being removed, the General Contractor and the Architects should have known that there would be environmental consequences, and the spill should have been cleaned up right away. The Architect should have insisted on it.

Now that several decades had passed, and the contaminants had leeched into the soil, the price of a cleanup had escalated. But the Architect and the Contractor were still responsible for making this happen.

Miraculously, after thirty years, both the Architect and the Contractor were still in business.

When interviewed by Pro-Demnity, the Architects Sal Khalid & Len Cheng couldn’t recall any spill. Thirty years is a long time. They did, however, vaguely remember the job, and had even retained some files, including a set of drawings and a survey plan. The survey showed the oil tank, and the architectural drawings indicated that it was to be removed. They couldn’t really provide any more information than that.

In their view, which the Pro-Demnity Claims Specialist shared, the contamination could just as easily have resulted from previous decades of careless handling of engine oil and gasoline, or even a slow leak from the oil tank. Neither of these causes could be blamed on the Architects or Contractor. Whatever the cause, we agreed that the site had to be cleaned up, and serious money was involved.

The General Contractor was an old family firm, still in business, but none of the current personnel had any knowledge of the job. It seemed that any recollections or documentation—as well as the previous management, unfortunately—had been buried.

The subcontractor Zeke Quinzy, who had been responsible for digging up the tank and carting it away, had retired, but was still hale and hearty. When questioned by Pro-Demnity, he vaguely remembered the removal of the tank, but denied that there had been any oil spillage. He pointed out that the tank was probably empty, or almost empty, since normal practice would have been to pump out the oil periodically and sell it to a waste oil refiner. If any oil had remained in the tank at the time of its removal, it would also have been pumped out so the tank could be lifted more easily. To his recollection, they hadn’t done this, so the tank must have been empty when it was removed.

Based on Quinzy’s account, we found it hard to believe that this claim could go anywhere. But a defence had to be made. And so far, all we had were the distant memories of the subcontractor and two aging Architects, bolstered by the firm belief that resurrecting a thirty-year-old claim was grossly unfair.

We had to wonder: What were the environmental laws at the time? The Architects’ drawings clearly noted: “remove buried tank.” Was that enough in the ‘90s? Or should there have been a clearer specification calling for an environmentally safe removal? And if there had been clearer instructions, would that just have made our current situation worse, by showing that the Architects knew of the seriousness but failed to protect the Client and the Public? Assuming that the Architects had a contract for full services, what duty of care would have been expected of them?

Deciding how to defend this tenuous claim was not an easy matter.

The battle continued, and the claim grew in size and cost, as new damages were dreamed up, and Statements of Claim were amended.

A discovery session was not productive, since so few people remembered anything. Marjory Wall, who had been president of the original Elmville Meat Packers, also had a dim recollection of the oil tank removal. Now in her mid-90s, Marjory had been present when the oil tank had been raised from the ground. 

She now recalled that she had made a movie of the event.

It was unlikely that the movie still existed in any viewable form, but spurred on by the recollection, she dug into her old files and miraculously uncovered it.

The discovery of the Super-8 cassette was more than a little unsettling. It was startling, to say the least. What if it showed the Architects grinning and slapping each other on the back as the tank was hoisted and oil poured all over the ground? On the other hand, maybe the film would work in our favour, by identifying long-forgotten, but culpable, third parties. 

In a mediation session that followed, the movie—now transferred to digital format—failed to meet our dramatic expectations. Unfortunately, however, it clearly showed a stream of dark liquid flowing from the tank as the crane slowly lifted it onto the truck. Quinzy now remembered the spill. But he had assumed that the liquid was just dirty water. Aside from him and his crew, there was no one recognizable in the film we could press for further testimony.

 An odd feature of the film was that the camera operator seemed to be treating the spill more seriously than the participants and onlookers. The camera zoomed in on the crack in the tank, and the black liquid frothing as it splashed on the ground. Marjory must have been curious about what she was filming, but did not seem to fully appreciate its significance.

At least now, we had evidence that a spill had indeed occurred and had been witnessed by the subcontractor and his crew. The question was: How should we deal with it?

Right away, counsel for Pro-Demnity and the Contractor attempted to have the matter dismissed by Summary Judgment, arguing that the Statute of Limitations made any determination of guilt completely irrelevant.

A local judge heard the arguments and rejected them. In his opinion, the limitation period did not commence when the spill occurred and was filmed. He accepted Marjory Wall’s contention that she had not really understood what she was seeing. After all, she “had no construction experience.” By this reasoning, the limitation period didn’t start to run until it was realized that a problem existed—in other words, when the film was resurrected and shown to the parties in the current lawsuit.

This was a severe setback. It meant that the liability for the spill, if any existed, was as valid today as if it had occurred yesterday.

 Months rolled by, as the matter dragged on towards trial. During this period, as so often happens, the plaintiff began to have misgivings about the certainty of a favourable outcome. Their lawyer, no doubt, was giving them the best-case/worst-case scenarios. It would be an expensive case to lose.

As the trial date approached, the plaintiff’s cold feet got even colder. With less than a week to go before the trial was to begin, they surprised us by making an offer, with Pro-Demnity contributing only a token amount. We quickly accepted, and the matter abruptly closed.

 Limitation periods can be tricky. A construction problem can lie dormant for years. The clock doesn’t necessarily start ticking until the problem is discovered—not when it is created. In this case, the plaintiff had observed the event that caused the problem . . . and had actually filmed it for posterity. 

 For us, the settlement was a small blessing. It cost the Architects a portion of their deductible, and Pro-Demnity a small amount in defence costs. But it’s painful to fork out several thousand dollars for a matter that was buried-  then unburied—decades later.

Still, there are lessons to be learned:

Lesson No. 1: A picture is worth a thousand words. Using video or photography to capture things you see during General Reviews can be very useful by visually illustrating your findings. Be sure to properly label, file and save photographs and video, just as you would all other project and client notes.

Lesson No. 2: Depending on the situation, the Statute of Limitations may protect you. Then again, it may not. Remember this: The clock does not begin to run until an event comes to light, or its importance is realized, even after memories have faded or participants moved on. Learn more about limitations periods in force in your jurisdiction, or speak with your firm’s lawyer.           

Lesson No. 3: When it comes to the environment, there are many things to consider, including, as in this case, the architect’s duty to the public. Environmentally sensitive sites may require additional attention, broader consultation, specialized knowledge, thorough documentation and appropriate remediations, in keeping with the laws of the land. 

Lesson No. 4: Keep your professional liability insurance active and don’t let it lapse. When the day arrives that you’re ready to surrender your Certificate of Practice, there is a process by which Pro-Demnity will usher you into the Retirement from Practice Program, and support you if a claim does arise from your previous work. Videos and spectres from the distant past can sometimes return to haunt you.                                                

***
 
A public sidewalk normally provides a safe pedestrian realm, free from treacherous vehicles, tripping hazards, dangerous obstacles . . . and architecture of any kind. But in this story, a shopper suffers debilitating injuries when she slips on a patch of slime, as she is leaving a supermarket. The gooey glob consists of algae growth, cultivated by rainwater that flows from a downspout, on a building designed by an architect. Naturally, the Architect is held to blame for the protracted drama, which we call “GREENER PASTURES”.

When Mrs. Lennox left the Mercerville Groceteria on a Saturday morning, she was carrying heavy bags of groceries in each hand. Shuffling onto the sidewalk, her foot suddenly slipped from underneath her and she fell onto the concrete surface. Disoriented, but still mobile, she picked up her bags and stepped onto the roadway . . . in front of a bus . . . which failed to stop in time…causing her further serious injuries.

A claim, inevitably followed against the Groceteria, which third partied the Contractor Lombardo Construction and the Architect Hilary Korner.

Mrs. Lennox’s injuries were numerous and traumatic. They had caused symptoms ranging from recurrent headaches to back pain, to nerve damage, to broken bones. Her career as janitorial personnel at Household Engineering Inc. was not just interrupted, it was over for good.

She was 55 years old and had anticipated working for decades longer, to support herself and her chronically unemployed husband, who had long ago exhausted his unemployment benefits. 

In her subrogated claim on behalf of OHIP, Mrs. Lennox listed expenses, immediate loss of income and loss of future earnings for the balance of her normal working life. In addition, there was pain and suffering, loss of enjoyment of life, chronic emotional distress, etc., all of which added up to a million dollars.

The sequence of accidents—first, her abrupt contact with the sidewalk, and then with the moving bus—was the direct result of a downspout having been poorly located. The Owner and Architect should have known that the pipe would disgorge water onto the sidewalk, where it would encourage algae growth, with the result that unsuspecting shoppers such as herself, burdened with heavy purchases, might fail to notice the green patch and end up with life-altering injuries.

The Groceteria was preparing to base its defence on the fact that the “alleged” algae patch, identified as the main (or “proximate”) cause of the injury, was an intermittent phenomenon of natural origin that had existed on and off for years. On those rare occasions when rainfall was particularly heavy, water from the downspout of the canopy would dampen the sidewalk and foster algae growth, which was slippery when wet. In any event, it was a very small patch and was regularly cleaned up. There had never been any problems in the past. 

Lombardo Construction was mounting an appropriate—and effective—defence. Their duty, under the contract, was to build according to the contract documents, which they had done. In placing the scuppers and downpipe for the canopy, they had simply followed the Architect’s instructions. It isn’t the General Contractor’s responsibility to locate rainwater leaders or to keep the sidewalk clean, etc., etc. They were not liable for anything.

 Liability had to reside somewhere, and it was starting to look like it might be shunted onto the Architect Hilary Korner. So, we arranged a conference call, to hear her side of the story.

Korner’s manner was immediately antagonistic and uncooperative. In her elevated opinion, the entire legal system was evil and parasitic. This blight, of course, included her own defence counsel and her insurer Pro-Demnity. 

 She proceeded to lecture us on “the facts of the case.”

First, if the sidewalk had been properly sloped, water would not have collected near the downpipe, or anywhere else, and there would have been no algae. Second, her contract with the Owner included “general review” of the work, making no reference to inspection of adjacent walkways or, for that matter, carefully examining every tiny aspect of the construction. Third, her drawings clearly indicated that the concrete pad under the canopy sloped to the sidewalk. The lack of a proper slope on the sidewalk itself was not apparent, and anyway, certainly not her problem. She believed that she had zero liability and she had even less interest in helping to resolve the matter.

Shortly after our interview, Korner vanished into thin air, and from then until the final settlement, remained invisible and unreachable. Registered letters to her old address—the only one we had—went unanswered.

Without the Architect’s support and participation, it would be necessary for us to trot out all the usual and obvious pleadings. Was Mrs. Lennox’s fall really the direct result of that conspicuous patch of dark green? Was she wearing the wrong glasses, or improper shoes, or had she consumed alcohol and/or drugs, or simply failed to keep a proper lookout? She had already admitted to having a bad back and deteriorating sight in one eye, as a result of a previous medical condition, not wholly the result of the algae accidents. As unpleasant as these tired strategies are to us, legal thinking dictates that no stone be left unturned.

The combined defence counsels and insurers called a meeting to consider the next moves. Should we settle, mediate, or let a Judge decide the quantum, if any, and the division of the liability?

Our first decision, at the suggestion of the Owner’s Insurer, was to hire a private investigator, to see if there was any evidence of “malingering” or anything suspicious in her background. In other words, was she faking it? Our second decision was to engage a medical specialist to examine Mrs. Lennox, assuming she would allow it. Finally, we all agreed that when more of the facts were in, we would hold a mediation session. In personal injury cases like this one, it’s hardly ever a good idea to go to trial.

Then followed a hiatus that lasted two years. Mrs. Lennox’s counsel had become as invisible as our Architect. Communication had ceased completely: no reply to our request for a medical examination, or details regarding the plaintiff’s injuries or current medical state. Sometimes claims just wither away. We allowed ourselves to be lulled into thinking that this matter had died.

Our optimistic fantasy was abruptly shattered when we received notice from Mrs. Lennox’s counsel that the case was going to be revived, with some urgency—and with further medical claims. The two-year delay, they explained, had been to allow any further symptoms or complications to manifest themselves, so that a “proper claim,” could be made, and a final, fair settlement could be reached. A further $250,000 had also been added to the claim, to compensate for a chronic stiff neck. 

Her Counsel agreed to arrange for our medical consultant to examine Mrs. Lennox.

A mediation was duly organized, to which all parties were invited. Lombardo Construction declined since, Mr. Lombardo had folded his company and moved on. Pro-Demnity made exhaustive attempts to reach the Architect, without any positive result.

The Claims Specialist had even travelled to Mercerville in the hope of tracking the Architect down. He made cold calls from his motel room—to local architects and anyone with the last name Korner—all for the sake of talking with her and constructing a credible defence. It was to no avail. Some local merchants thought that she might have moved to another province.

And so, the mediation went ahead as scheduled, with a retired judge presiding as mediator.

The Plaintiff’s lawyer Luther Daggin, a large, blustery but very effective personal injury specialist, began the proceedings. In painful detail, he described his client’s injuries, the hardships she had faced, and the bleak future that lay ahead of her. He presented $36,000 worth of medical bills, along with previous reports from two medical specialists and a chiropractor. It all pointed to the fact that Mrs. Lennox was debilitated for life and was owed a generous settlement. The liability of the defendants was obvious.

Towards the end of Daggin’s oration, his client made her entrance. With a walking stick clutched in her left hand, and Mr. Lennox holding her right elbow, Mrs. Lennox shuffled toward the only vacant chair. Then, slowly and obviously quite painfully, she sat down with a sigh.

The defence team also uttered a sigh, in the recognition that Mrs. Lennox’s dramatic entrance had doomed our case. A sense of guilt was unavoidable.

Willard Albary, counsel for the Groceteria, opened for the defence. Having already set up a projector and screen, with great fanfare, he was now preparing to present the crown jewel of our exculpatory evidence. It consisted of a video that would demonstrate the true extent of the Plaintiff’s alleged injuries, and call into question the contention that Mrs. Lennox was doomed to a life of misery.

Albary’s video was the result of our private investigator having followed the Lennoxes and filming them secretly. When we had originally been made aware of this scheme, we naturally regarded it as a distasteful invasion of privacy. Surely there was something more palatable that we could present in evidence. However, there wasn’t, so we were persuaded by counsel to go along.

The video had been taken at a cottage that the Lennoxes had borrowed for a few summer weekends. It opened with an action sequence of Mrs. Lennox on a bicycle, waving goodbye to her husband and pedalling vigorously uphill to a nearby grocery store. In the next scene, a few minutes later, she returned with carrier bags on the handlebars.

The following scene showed the Lennoxes carrying a canoe from the cottage to their truck, along with a large cooler and camping paraphernalia. The balance of the video consisted of scenes showing the plaintiff in various locations walking briskly without any apparent effort.

The video was authentically dated as having been taken in the summer immediately following the claim, during the two-year hiatus. The bright sunlight and frame of lush green vegetation, behind which our investigator was hidden, contrasted with the gloomy urban winter day of the mediation.

When the lights went back on, we were all a bit uncomfortable, having embarrassed the poor plaintiff by catching her in a lie.

Oddly, plaintiff’s counsel was buoyant. He cheerfully pointed out that the medical reports described this apparent paradox in detail. “Mrs. Lennox’s problems,” he said “are intermittent, and the video illustrates this perfectly. We have here today an obviously debilitated lady of mature years, but mercifully, she enjoys brief remissions from her pain, from time to time, giving her . . . some quality of life.”

We defendants, dumbstruck, asked the plaintiff and counsel to leave the room. We needed to discuss strategy.

On the one hand, we had serious doubts that Mrs. Lennox was as incapacitated as she claimed to be, and the video proved it. On the other hand, the medical reports, including those we had commissioned, were conclusive regarding her loss of function. We felt that Mrs. Lennox’s theatrical entry performance, if she were to reprise it in a courtroom, would probably play to a sympathetic jury, who would accept Daggin’s “intermittent” argument, and regard our attempts to prove malingering as a cheap shot. This was also our mediator’s view. He recommended that we settle. 

But, we had given the plaintiff cause for concern by presenting an alternate picture of Mrs. Lennox as an active person, in contrast to the pitiable victim sitting in the mediation room. Maybe a jury would not be so easily swayed.

We called the plaintiff’s counsel back in and offered to settle for $300,000; otherwise, we would be forced to take our chances at trial.

Counsel retired to discuss the matter with his clients. An hour and a half later, he returned and accepted the settlement, provided that we contributed to his costs, amounting to $17,500. We split the full amount evenly between us and the Contractor, and the matter was ended.

 We all shook hands and parted. The Lennoxes slowly shambled out, just as they had arrived. We had a feeling that, with their dreams of a million-dollar settlement turned to dust, the Lennoxes would probably throw away the walking stick and ride their bicycles home.

This claim is not unlike many other “slip-and-fall” cases that Pro-Demnity has defended over the years. Our strongest defence is usually that the plaintiff is not in fact as seriously injured as claimed, and that the amount of the claim is out of line. But these cases are very difficult to win, because the plaintiff’s obvious injuries offer their own eloquent testimony, and put the defendants in the awkward position of further abusing someone who is already a victim. Courts are notorious for dishing out “rough justice,” being none too concerned with the finer points of liability.

When our demand for her deductible amount reached her by “pure chance,” the Architect Hilary Korner magically re-appeared, furious that we had acted without her authority. We pointed out that there is a condition in her professional liability policy that allows Pro-Demnity—or, in cases like this, requires Pro-Demnity—to do just this.

Korner went on to state that if she had been allowed “her day in court,” her innocence would have been shown beyond a doubt, and she would have saved Pro-Demnity and herself a lot of money. She made this assertion without having considered the substantial costs of preparing a defence and appearing in court to face an unsympathetic judge and jury, with the possibility that a seven-figure settlement might easily result. 

Fortunately, we don’t share Korner’s theories of risk management. And this brings us to several lessons, specific to the Architect’s conduct:

Lesson Number 1: Policyholders have an obligation to work with their professional liability insurer in the event of an allegation of error, omission, or negligence against the Architect. It’s built right into the policy itself.

Lesson Number 2: Policyholders don’t always agree with our decisions, and are sometimes perturbed that we settle rather than fight to the bitter end. Depending on the circumstances of allegations against Architects, Pro-Demnity has been known to take certain cases to, and win at, the Superior Court of Ontario. Experience, however, has taught us that in many cases— especially personal injury cases—the sympathy of a judge and jury normally mirror that of the general population, when it comes to individuals versus insurers. It’s usually much wiser to cut one’s losses early.