How One Marble Threshold Taught This Architect a $450K Lesson

In a lavish hotel suite where a marble threshold trips the host, a painful fall sparks a million-dollar claim. Can an architect be liable despite code compliance?

Learn why safety is more important than style, how well-crafted details can help your defense, and why juries favor sympathy.

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Chapters

• 0:00 Cold Open
• 0:28 Introduction
• 2:05 Story Begins
• 17:14 Lessons
• 19:38 Credits And Thanks

Transcript

Designed by award-winning Kingston Architect Reginald Astragall, The Colborn Royal Kensington Hotel was simply one of the finest hotels in eastern Ontario. And the penthouse suites were “la crème de la crème”, boasting spacious rooms, with luxurious appointments, expensive materials and impeccable detailing. The kitchen floors, for example, were finished with porcelain tiles from Spain; the living-dining area was graced with merino carpets imported from New Zealand. The threshold between the two floor surfaces was highlighted by a strip of solid travertine, which was both elegant and functional, since it separated and protected the carpeting from the washable tile floor. Unfortunately, and entirely unintentionally, it made the entry to the kitchen a potential safety hazard. We call this story “MAKING AN ENTRANCE.”

Shortly after the Hotel opened, Mrs. Edwina Netterfield, a successful real estate broker in the Kingston area, had rented one of the penthouse suites to celebrate a lucrative closing. She had invited a dozen of her colleagues to join the celebration.

Before the arrival of her caterers, she helped herself to a non-alcoholic beverage from the Thermidor fridge and set it on the coffee table. As she went back to the kitchen to retrieve a few ice cubes, her foot caught on the marble threshold. So, instead of making a smooth, confident entry into the kitchen, as might befit a successful businesswoman, she went headfirst, through the air, along the tile floor and straight into the base of the solid birch cabinets.

This changed her evening plans dramatically.

An ambulance rushed Mrs. Netterfield to the emergency room, where she was examined, and found to have sustained no serious physical injury—no broken bones, sprained joints or torn ligaments—and released. As the doctor explained to her, the injuries she had sustained were of the soft-tissue kind—capable of causing much pain and suffering, but unquantifiable, and undetectable by medical instruments.

Perhaps the bigger injury was to Mrs. Netterfield’s pride. She had to cancel her party. And while her colleagues were openly sympathetic about her unfortunate mishap, she could only imagine what they were saying behind her back about her clumsiness, and the obvious dark humour they must have shared in imagining her flying like an inept trapeze artist directly into the kitchen cabinets. Her only recourse was to regain her pride by suing the Hotel and the Architect whose thoughtless design had caused her anguish.

In her suit, Mrs. Netterfield was seeking three million dollars in compensation for pain and suffering as well as for financial loss—actual and potential—since the accident had left her unable to work at all. Then, of course, there was reputational damage since her social activities and public appearances had now come to an undignified end. She rarely left her home anymore, and then, only with the help of friends and family.

In short, her life had been ruined.

On receipt of the Claim, Pro-Demnity assumed that it was just another trip-and-fall case, in which an individual who has suffered a possibly minor injury wishes to extract a major payout from some well-insured defendants, regardless of attributable blame. We knew that if this case went to court, there was a good chance that the appearance of pain and suffering—severe, modest, or entirely simulated—would work in the plaintiff’s favour in front of a jury. Trial was to be avoided. 

Mediation took place in a meeting room rented for the day from the school board. Defences had been submitted by the Hotel Owners, represented by their property insurer and legal counsel, and by Pro-Demnity for the architect. 

The mediator was an experienced senior lawyer, whose specialty, appeared to be maintaining a light-hearted atmosphere. This was a godsend, since the plaintiff’s counsel, Jonathan Havilland, a young and humourless member of a small firm that specialized in personal injury cases, seemed hell-bent on creating an aura of gloom.

After the mediator delivered the usual preamble, reminding all parties of the rules of conduct, etc., etc., Havilland took the floor and launched into Mrs. Netterfield’s sorry tale of the disastrous fall and its dire consequences. To support his case, he produced a quantity of documents attesting to his client’s post-traumatic issues and, to add to the theatrics, he produced Mrs. Netterfield herself. 

All eyes turned as the side door clicked and slowly opened. After several seconds of dramatic pause, the frail figure of Mrs. Netterfield hesitantly shuffled into the room, encumbered by the largest neck brace that any of us had ever seen. With her counsel clutching her arm, she made her way, slowly and precariously, to her seat. She was an extremely sorry sight—the very personification of the loss of enjoyment of life.

In a barely audible voice, Mrs. Netterfield recounted her impressions of her solo flight across the length of the penthouse kitchen. In order to hear her, we were forced to gather around her chair. We were transfixed.

It was hard to know whether this performance wasor staged for our benefit. Had she been coached by her lawyer, or had she written this scene all by herself? Even her drab clothing, her slightly unkempt hair and exaggerated makeup appeared to have been designed to express despair. But it had been nearly three years since the accident. Had she lived every one of those thousand days in this dreadful state? If she had, then she certainly deserved our sympathy—but not necessarily three million dollars in compensation. Our task was to get to the bottom of this and uncover the facts, if there were any to be uncovered.

So, when she had finished her story, Pro-Demnity counsel gently asked why the injury to her shoulder and neck caused her to whisper since there was no medical indication of throat or mouth damage, and the accident had happened three years go. She replied that she was just too weak to speak above a whisper.

Our legal counsel continued. Addressing the room, she pointed out that, sympathetic as we were to the pain Mrs. Netterfield appeared to be enduring, the insurance available was not a compensation fund, and that for any damages to be payable, there had to be some proven negligence on the part of the defendants. The facts of the case indicated that no blame could be assigned to the Architect.

We were confident that, should the matter go to court, we could present expert opinions to verify that the architect’s specification and details “met the standards” of the time. The marble thresholds indicated on the drawings were within Code requirements, and there were literally thousands of buildings in Ontario with identical details. There would be no damage payments.

Our counsel further pointed out that doctors had found no physical damage—only unquantifiable soft-tissue damage—which didn’t really explain why Mrs. Netterfield was still unable to function after three years. Counsel didn’t mention, what we all knew, that soft-tissue damage had been recognized in innumerable judicial decisions as the cause of much suffering. Mrs. Netterfield’s appearance said all that needed to be said. Medical opinion was irrelevant.

The property insurer’s counsel, representing the Hotel’s interests, declined to add anything, so we defendants retired to an adjacent office, designated as the “caucus room.” There, during an intense discussion, our certainty of innocence gradually evaporated.

To begin with, the thresholds were not exactly according to Code, because they weren’t “chamfered.” This chamfering, or bevelling, would have softened the transition between the floor surfaces and might have prevented Mrs. Netterfield’s mishap. The Architect countered that the chamfering was a “handicap” requirement, intended to accommodate wheelchair access, and this was not a wheelchair accident. But still, it was a problem.

Then, the building owner had removed all the marble thresholds within weeks of the accident, so there was no way to confirm the height and configuration of this particular threshold. The co-defendant’s counsel suggested that this was only a precaution to prevent any possible further incidents. But it may still have suggested that the Hotel had identified a wrong and was trying to right it.

The final letdown was the admission by the property insurer that they had “put a tail” on Mrs. Netterfield, as insurance companies sometimes do, to find gaps in the claimant’s story. During the three years of admittedly intermittent observation, Mrs. Netterfield had not worked or taken vacations. She only ventured from her home to attend church or, occasionally to meet friends. She was always driven by one of her children who helped her to the car, plodding and unsteady, neck brace and all. She had not been observed doing anything that might diminish her credibility.

And jury trial was approaching.

Mrs. Netterfield was an upstanding member of the community: a mother, a grandmother, and a dedicated church-goer. If her performance wasn’t genuine, it was certainly Oscar-worthy—and any jury would give her the benefit of the doubt. We, the insurers, would be given no such benefit. 

We decided among ourselves to try and “manage” the impending loss as best we could. Taking a strictly economic approach, we asked ourselves: What had she spent on her lawyer and medical reports? We decided $150,000 would cover this. We had figured that, at $150,000 a year, she had lost $450,000 in gross wages, although with the Unemployment Insurance and other benefits, she had actually lost less.

We set our sights at $500,000 max, and started the bargaining at $400,000. After two hours of to-ing and fro-ing, we settled at $450,000—half to be paid by Pro-Demnity, the other half by the Hotel’s insurer.

No one was truly happy with this outcome except the mediator, who proudly announced that the result was “wonderful” and represented the “best possible outcome for all parties.” He was probably right.

As a Postscript: Personal Injury claims against Architects, in Canada at least, are much more common today—and much more costly—than they were a few decades ago. 

As soon as a personal injury lawyer gets involved an expert is hired, photos are taken, and the accident scene is measured to the millimetre. Our defence is always that building construction is very different from watchmaking. On a stairway, for example, it’s rare for every tread and riser to be perfect, or for floors and sidewalks to be dead level. Minor variations are inevitable, perfectly acceptable, and are even recognized in Building Codes. Usually, common sense prevails, and extravagant, frivolous or opportunistic claims are dismissed, with prejudice.

But in personal injury cases, human sympathy is a more powerful force than any argument based on facts and figures. A hapless “victim,” as the plaintiff hopes to be perceived, must be compensated by the “victimizers.” And, thanks to the Negligence Act, the relative degree of responsibility among the defendants is immaterial. If fault can be shown to exist, then compensation must come from whoever has the ability to pay. One percent of liability may translate to 100% of liability attributed to the available deep pocket.

Further to that, many injuries are of the “soft tissue” variety—unquantifiable and undiscoverable using medical technology. Fatigue, chronic pain, depression, etc. are detectable but not always clinically provable, or assignable to a distinct proximate cause . . . and zest for life may be lost for any number of reasons. There are always medical practitioners willing to back the plaintiff’s claims, and an equal number of defence doctors prepared to confirm the exact opposite.

It’s virtually impossible for an Architect to avoid every circumstance that might give rise to a personal injury claim, so the need for adequate professional liability insurance is obvious. But in areas—even tiny ones—where personal safety is involved, special care needs to be taken. From stories such as this one, lessons may be learned. 

Lesson No. 1:Marble thresholds at kitchen and bathroom entrances are common, and extremely useful for identifying changes in floor finishes or keeping water in spaces intended to be wet. They are more durable than metal strips, and usually just as safe, provided that their shape or height above adjacent materials doesn’t present a tripping hazard.

Lesson No. 2: Trust your legal team. In a civil case, the burden of proof always lies with the plaintiff. But in a personal injury case, sympathy for the plaintiff may invert this rule, shifting that burden to the defendant. After all, it’s much easier to commiserate with a distraught plaintiff than with a self-assured, well-heeled professional or their well-funded Insurer.

Any trial or mediation containing so many unknowns—and unknow-ables—is a gamble. But the plaintiff faces as many uncertainties as the defendants, which is why, with patience, wisdom and adequate preparation, we can usually settle at a fraction of the claimed amount. 

Lesson No.3: Personal injury claims are tort claims. There is no way to contract out of this type of exposure. Recognizing the growth in this type of claim, the increasing amounts of damages being sought, and the lack of connection between the risk and fees or construction value, architects are encouraged to consider purchasing higher than the mandatory minimum limits required under the Architects Act.