An interior decorator was serving as the prime consultant for a very disorganized building project. Although he referred to himself as the “Captain of the Ship,” he was apparently unaware of maritime law, because, when the project under his “command” burned to the ground, he abandoned ship and blamed the disaster on his “crew”—including, of course, the Architect. With apologies to Walt Whitman, this story is called: “O CAPTAIN! MY CAPTAIN!”
Henry LeSabre had sold his successful car dealership to fulfill his dream of owning and operating a high-end ski lodge and year-round gourmet restaurant. This destination resort, as he imagined it, would consist of a bar, a lounge, a dining room and a sunny terrace, with a private apartment for him and his new wife Lucinda on the upper floor. He had purchased a property, next to a popular ski hill, and had commissioned his friend, the celebrity interior decorator Nigel Knotsworth, to handle the design and construction details.
Knotsworth, was a fashionable, silver-haired decorator whose clientele included wealthy, old-money socialites, who required his services for their cottages, penthouses and Palm Beach apartments. He was proud to provide his clients with a full-service package that encompassed all aspects of design and construction—far beyond the normal decorator activities like ordering materials, supplying fabrics and furnishings, and selecting artwork.
Knotsworth’s studio-office in midtown Toronto housed an art gallery, an antique shop and a tearoom on the ground floor. In the second-floor loft, he maintained a staff of six, including designers and draftspeople. When required, he also engaged outside architects, engineers and other experts.
For the LeSabre project, Knotsworth hired Architect Bruno Lareira—but only to provide construction documents, stamped and ready for building permit application, based on Knotsworth’s design—nothing more. His staff would take care of hiring a Construction Manager, engaging trades and reviewing construction. To his way of thinking, he, Nigel Knotsworth, was “the Captain of the Ship.” Lareira, was more of a deck-hand—a de facto draftsperson, whose knowledge of building regulations was useful, and whose stamp was necessary for getting a building permit.
When the permit was issued, Lareira’s involvement was terminated.
Eight months later, out of the blue, Lareira received a request from Knotsworth to visit the site and have a quick look at the magnificent resort that he had helped to create. Lareira was flattered by the invitation, although the decorator’s real motivation was obvious: An Architect’s signature was required on a Certificate of Substantial Completion, so that the final funds could be released. Lareira agreed to perform this site visit for a standard per diem fee.
On-site, Georgina Bertick, an architectural intern working in Knotsworth’s studio, took Lareira on a quick tour of the building. It looked more-or-less as he imagined it—at least, he didn’t notice any striking irregularities. The focus of the ground-floor space, a large double-sided fireplace, dividing the bar-lounge from the dining area, was an imposing feature. This was the first time Lareira had seen the installation, since his drawings had indicated only the general size and location, with the final design and selection of components left to Knotsworth.
After that impromptu visit, Lareira made only one more trip to the project—for the official ribbon cutting ceremony, announcing the opening of the resort restaurant, and the official kick-off of the ski season. The event was attended by Knotsworth’s admirers and clients as well as assorted local dignitaries. The crowd was cheerful—warmed by the festive atmosphere, the drinks, and the giant fireplace, which was in full blaze. The celebration, the champagne and the fire didn’t sputter out until the wee hours of the morning.
Two weeks later, in the dead of night, the entire building went up in flames. The LeSabres had sufficient warning to get outside, wearing only pajamas and overcoats, as they watched their home and their dream burn to the ground.
The local reserve fire department had been called, but they arrived too late to save anything. The entire wooden structure had been reduced to ashes. By the time the Fire Marshall appeared on the scene, the only identifiable object was the mangled remains of the fireplace, which the Fire Marshall identified as the probable cause of the fire.
LeSabre was disheartened, to say the least. But he was not discouraged. With his property insurance settlement, he rebuilt his dream, although in a modified form, taking special care to select a more modest fireplace and to ensure that it was sufficiently insulated from any combustible structure or materials.
Lareira was not involved in the redesign and reconstruction, and was not invited to the re-opening. In fact, he heard nothing about the project at all, until he received notice that he had been third-partied in a claim by LeSabre’s property insurer in the Owner’s name. He soon learned that the Contractor Gerald Builda, the fireplace supplier Woodburn Inc., and the Township of Lacey Green had also been third-partied. The defendants in the action were Knotsworth and his intern architect Georgina Bertick. The claim sought the return of all fees paid, plus the cost of redesign and reconstruction, as well as restitution for business losses. It all added up to 1.5 million dollars.
When Pro-Demnity was informed of the Notice of Claim, they asked themselves the two standard, “burning” questions: Was there negligence in the design—particularly of the fireplace? And who was liable? It was time to investigate.
The fireplace, we noted, had been installed level with the hardwood floor. It was an “open concept” design, meaning that the fire was visible from both the lounge side and the dining room side. But in reality, only the lounge side, was actually “open,” with a firescreen and a hearth. On the dining room side, a tempered glass window filled the entire opening. Since there was no hearth on this side, nothing separated the fire from the wood flooring, apart from the single pane of glass. According to the Fire Marshal's report, this alone had made a building fire virtually inevitable.
Liability, on the other hand, was far from clear. First of all, if the Architect was at fault, who in fact was the “Architect”? Was it the actual Architect Lareira, a young and inexperienced practitioner who had acted purely as a draftsperson and had not overseen the selection or installation of the fireplace? Was it the overbearing Knotsworth, who was widely known as an “unregistered architect” and, despite being the “Captain of the Ship,” was claiming that he relied entirely on Lareira’s decisions? Was it possibly the Architect Intern Bertick, who had reviewed the construction on behalf of Knotsworth?
Then too, some liability must have rested with the Township building officials who approved the drawings and reviewed the fireplace in situ. And possibly with the Fireplace Supply House—in reality a hardware and building supply store—that was familiar with the design, had seen the installation, and had even been called in to replace the glass panel shortly after installation. Lastly, there was the General Contractor-slash-Construction Manager, who should have known better.
During the course of our investigation, it became clear that Lareira had neglected to mention a few facts that would surely undercut the credibility of our defence.
He had obviously examined the fireplace shop drawings, because he had made handwritten notes on them, adjusted minor details and then taken the amended fireplace design to the building officials for approval. Added to this was the fact that he had visited the site twice, after the fireplace had been installed. The first visit was in order to issue a Certificate of Substantial Completion. The second visit, for the opening party, allowed him to see the fireplace in full operation, with its crackling blaze providing the centre of attention. For this visit, a glass or two of champagne may have dulled his observational skills, but for the previous visit, he would have been expected to notice any deficiencies. He may have considered this “site review” as a mere formality, but no court would see it that way.
In order to forestall a protracted and expensive litigation, all parties agreed to mediation. The session took place in downtown Toronto, with retired Judge Leila Brand presiding, and with all parties represented by legal counsel and insurers. The proceedings were businesslike—with little opportunity for forensic grandstanding.
Despite our differing views of the areas of responsibility and the chain of command, we defendants agreed among ourselves to negotiate as a body, and to sort out proportional liability later. We doubted that the true costs were anywhere near the amount claimed, and we took the position that the plaintiff should bear some responsibility, by not having observed the problem as it developed. There had been clear evidence that the glass panel was overheating, to the extent that it had been replaced under warranty—and that the adjacent floor was noticeably scorched.
The proceedings began with the defendants stating their positions.
The defendant, Knotsworth professed complete innocence. He was not an Architect and therefore had no liability for the design or construction of the building, or for anything having to do with the fireplace. His job had been to choose colours and furnishings, which had nothing to do with the cause of the fire. From our point of view, it also bore no relationship to the exalted role that he had repeatedly claimed for himself.
Furthermore, he stated, Lareira was directly responsible to LeSabre. It was true that he, Knotsworth, had hired the Architect, but he had done this only as a convenience, acting purely as LeSabre’s agent. He was therefore not contractually or vicariously liable for any architectural errors or omissions. Captain Knotsworth, apparently, had no problem abandoning ship.
The defendant Georgina Bertick, the intern architect, who had been responsible for supervising the construction and showing Lareira around the site, was an employee and therefore not a proper party to the action. This was conceded by all parties and Georgina Bertick was let out of the action, much to her relief.
Pro-Demnity counsel, acting for the third-partied Architect Lareira, had a very clear view of the confusing project relationships that the “Captain” had nurtured and was now attempting to abandon. Lareira, from the very beginning, had been granted only a supporting role—little more than a draftsperson for Knotsworth's ideas and directions. He had affixed his firm’s title block to the drawings, for the sole purpose of obtaining a building permit. He had not reviewed the construction, because as soon as the permit had been granted, he was no longer engaged—tantamount to having been fired.
Furthermore, he had no responsibility for the fireplace, since his drawings indicated only general size and location, leaving it to Knotsworth to select the final article. His notations on the shop drawings were intended to serve one purpose: to ensure that everything would be done according to Code.
As for his single site visit, he had done this purely as a formality. He was hardly in a position to comment on the fireplace since it was already installed, and he believed that it satisfied the Suppliers specifications and the building inspectors’ scrutiny.
The third-partied fireplace suppliers, Woodburn Inc., presented a pro-forma defence. They had not designed the fireplace. They had merely supplied the parts, to be assembled and installed according to the design decisions of the Architect. There was nothing wrong with their products, as far as they could see.
Also third-partied, the General Contractor-slash-Construction Manager, Gerald Builda, presented another pro-forma defence. Basically, he had been on the jobsite the whole time, and had directed the work, precisely according to the drawings. He had simply followed orders—mostly issued by Knotsworth and Bertick. Knotsworth and the building officials had approved the work, and he had been paid in full.
Several times during his statement, Builda referred to Knotsworth as “The Architect”—an innocent mistake that must have pleased Knotsworth, but it also aided our defence.
Sometimes, people use the term “Architect” when referring to the “person in charge.” In this case, Knotsworth didn’t describe himself as an architect, but didn’t mind if others did. As “Captain of the Ship,” he expected to be perceived in that light, and since a ship can have only one captain, the Architect was essentially sidelined. Builda’s references to Knotsworth as “Architect” weren’t so much a slip of the tongue as a demonstration of the confusion of roles and responsibilities that plagued this project. Knotsworth, Bertick, Lareira, Builda, Woodburn—who was making the actual decisions and who was responsible for them? Would the real “Architect” please stand up?
With this organizational confusion working in our favour, we agreed to present a joint offer. Dividing up the damages, we agreed that Knotsworth and Lareira had the most liability exposure. The General Contractor and the Supplier Woodburn were just following orders, and the Township had a minor role. There was little to argue about. The drawings, the fire marshal's report, the co-defendants’ statements and the eyewitness accounts of the fire presented implacable obstacles to any plea of innocence.
With some whittling down of the claims for business loss, and after the usual blustering by the plaintiff, our offer was accepted, and the matter settled.
As in any tragic loss, this was an unfortunate set of circumstances for the Owner, but also, possibly, a reality check for the Architect. And, for all concerned there are valuable lessons to be learned.
Lesson No. 1: Fire, death, and personal injury present difficult defence problems. The loss is not contestable. Unlike complaints regarding building defects, we can’t claim that the allegations are baseless, that there is nothing really wrong, or that the owner got what they paid for.
When “the facts speak for themselves” so dramatically, there is little for the defence to do but to try to shift the blame around, recognizing that, in the end, under the provisions of the Negligence Act, all would be “jointly and severally” liable.
Lesson No. 2: Architects often find that, whatever they imagine the limitations of their service to be, the matter before the court is the very thing that they should have paid closer attention to—but didn’t. The most shocking examples of this arise from Architects’ “Final Certificates.” Architects who accept work that they have not reviewed during construction, and are only making a few visits, or one visit at the end, to oblige their client, are taking a dangerous risk. For a few hours of time, earning a trivial fee, an Architect may be faced with the same allegations that they would face if they had provided full contract administration. As a rule of thumb: Do not issue letters or Certificates for work that you have not reviewed during construction. As another rule of thumb: don’t agree to provide partial site services “at the call of the client.” Provide the full meal deal or nothing.
Lesson No. 3: Architects are frequently exposed to claims where the hierarchy of the construction process is unusual or muddled. In this case, the Architect had performed partial services, a fact that was reflected in his records and, naturally, in his level of care. But what those services represented was anyone’s guess. Everyone had their own idea of who was doing what for whom. If a ship were run this way, it would definitely run aground.
