After the fire — 'repair' when?
Many catastrophic fire scenes are completely destroyed, requiring absolute replacement as a “repair.”
Many catastrophic fire scenes require complete replacement, as shown above. Other fire scenes require only simple repairs of the electrical overhead power line equipment, such as replacing a conductor to a transformer or reattaching an insulator to a pole that caused a “floater” line arcing against other lines.
The above five-story high rail bridge fire scene, as long as three football fields, was preserved for many weeks until all interested parties were finally identified and afforded the opportunity to be present with us, have the scene properly documented prior to any alteration, and ensure all relevant evidence was preserved.
This was challenging because of the substantial lost profits until the bridge could be cleared and rebuilt.
“Repair” is spoliation of the scene
Spoliation is the “loss, destruction, or material alteration of an object or document that is evidence or potential evidence in a legal proceeding by one who has the responsibility for its preservation,” under the “National Fire Protection Association 921: Guide for Fire and Explosion Investigations.” Intent is not required.
Our experience is spoliation of the scene occurs quite often after the fire — before the private investigators can examine the scene complying with NFPA 921, widely-accepted by experts and attorneys for litigation. Utilities, oil & gas operators, and others repair, possibly with the best intentions, especially after the responding authorities have inspected and photographed. Even when the State Fire Marshal investigates for the written report, the Marshal is primarily eliminating whether arson occurred but not preserving, documenting or photographing evidence of other causes crucial to civil litigation. So then the scene is repaired to restore power, oil & gas production, etc. This repair usually eliminates scientific analysis; thus, the cause must be classified “undetermined” under 921.
Legal considerations
After spoliation, the parties are often left with only the uncorroborated “say-so” of the interest-conflicted spoliater — hardly the required scientific method! Also, who knows whether the evidence has been contaminated or altered?
Determining cause and responsibility
After spoliation, usually two or more hypotheses are equally likely, including negligence and mechanical failure, so an opinion cannot rise to a higher level of certainty than “possible.” Thus, fire cause is unresolved and should be classified as “undetermined.” Spoliation also eliminates possible failure analysis required to determine cause using the scientific method, so the fire investigator cannot determine responsibility.
What happens after spoliation is outside the scope of our article, so we recommend contacting an attorney immediately after the fire.
Wolf Puckett is a trial lawyer with Mullin Hoard & Brown in Amarillo, Tx. David Mullin and Puckett litigated five catastrophic fires, including two mega-wildfires destroying almost one million acres, and tried to a jury one large loss subrogation with lost profits. Recently, Puckett and Rick Womack investigated a 500 square-mile mega-wildfire and defended in a 70 square-mile wildfire.
Rick Womack, IAAI, CFI, is an International Association of Arson Investigators Certified Fire Investigator, owning Priority 1 Fire Investigation near Lubbock, Tx. He is highly regarded as an origin & cause expert in wildland, explosions, residential, commercial, industrial, vehicle, and heavy equipment fires, as well as fire & explosion fatalities.
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