How to Avoid Spoliation During Overhaul

May 10, 2016
Karen Facey shares how firefighters can help preserve the scene for fire investigators.

I recently joined “the dark side" after I left the public sector as a fire marshal to become a fire investigator for Liberty Mutual and Safeco Insurance. While we collectively banter and joke about people leaving the public sector and starting their private sector careers, the reality is we all have the same needs and motivation. Ask any first responder, and they will likely tell you they love what they do because they get “to help people.” Ask any private fire investigator why they investigate fires and they will also answer “to help people.”

Sure, we help in slightly different ways. First responders are there during the chaos. Insurance investigators and adjusters usually arrive a couple of days later. However, our united focus is on helping the person during one of the worst moments of their life, on preventing such a tragedy from occurring to others by identifying the cause of the fire and educating the public on how to live safely. We accomplish this in part by identifying product failures or contractor errors and holding those companies responsible via the product recall and subrogation processes. We also identify and minimize arson for profit, which is fraud.

What is spoliation? 

What does all of this mean to the responding firefighter? It means whether public or private, fire investigators need a scene left intact in order to conduct a quality origin and cause investigation. Spoliation is the destruction of a scene, or the loss of critical evidence. As investigators, we read burn patterns by looking at the effects of fire on gypsum board and plaster walls. We de-layer rafters, joists, studs, insulation, gypsum, plaster and lathe, ceiling tiles and whatever else has dropped down to uncover the furnishings in the room. We will carefully locate and trace every piece of household wiring, every circuit, and every appliance or cord attached to that wiring looking for the tiniest arc. We will meticulously keep up hours of back-breaking digging, often on hands and knees, going piece by piece like a carefully orchestrated archaeological excavation to recreate where each chair, desk, TV, power strip, rug, and item of clothing was located.

Our origin and cause determinations are considered expert decisions. We must qualify as expert witnesses to testify in court both on criminal and civil cases. It is a huge responsibility, challenged further by the fact fire investigations inherently involve negative corpus; the absence of the body. This means we quite often lack key evidence due to fire’s destructive properties, which can create a circumstantial case. It is a much stronger legal position to say here is the body, here is the gun, and here is the person who was witnessed firing the gun. It is weaker legally to say here is the burned building, here is the absence of studs and an area of low burning on the floor, so this is the area of greatest damage and therefore the area of origin. Here are items that were in the area of origin and therefore these five items could have been a cause. This specific appliance with internal arcing and a seized motor is the most likely to have caused the fire, but it was also involved in the fire and therefore severely damaged by direct flame impingement and heat.

Thus develops the chicken and egg theory—which damage occurred first? (This is also when all five of those appliances will be secured by investigators as evidence, and later tested in a joint exam by engineers in a laboratory setting.) The scientific method allows for and requires the use of deductive reasoning, which expects scientific inference by the fire investigator to establish the chain of events contributing to a fire’s occurrence. However, we need evidence to observe, document, and collect to establish the totality of the circumstances and select our final hypothesis that can hold up in court. The first people on scene begin that evidentiary chain and directly and unequivocally influence the outcome of any and all origin and cause investigations.

Overhaul and scene preservation

Enter the balance and dance of overhaul versus scene preservation. Extensive overhaul is only necessary in a few instances: defined as the room being gutted ready for new insulation and wall board, and everything in it spread haphazardly around the yard in the order it came out of various windows—try finding that one cell phone charger that might be the cause in a six-foot diameter by six-foot high frozen debris pile! I have heard firefighters tell the homeowner they gutted the room because everything was a total loss in the room (they’re right) and this way the necessary demolition to begin restoring the home was already completed.

While the firefighters’ hearts were in the right place, unfortunately they negated the ability for a proper, thorough investigation to be completed. Even worse is when blight ordinances require the yard be cleaned up within hours of a fire, and thus every personal effect and furnishing is now carted away in a roll-off container before anyone has had a chance to look at the contents and read their story; the burn patterns on the side of a chair, a seized motor, internal arcing in a household appliance or along a power cord, extension cords daisy chained together, the list is endless. This means no chance of recovering the homeowner’s deductible should XYZ product with a known recall for fire hazards be the cause of the fire. This means no chance to find that first product with a manufacturing defect. The one that would have created the chain of events for a product recall and prevented countless other people from suffering the tragedy of a home fire with its associated risks of injury and loss of life. This means no opportunity to educate both the homeowner and public why numerous extension cords interconnected and running underneath rugs is dangerous. Most of all, this means we cannot give the homeowner the closure and peace of mind they so desperately seek that a definitive origin and cause provides. This means even after they have rebuilt and moved on with their lives, they still have that nagging, omnipresent worry “what if it happens again, we don’t know what caused it, did I do something, or am I doing that now in my new home?”

Compromises between firefighters and investigators 

So, what are some satisfactory compromises to avoid spoliation? The easiest is to only overhaul and disturb the bare minimum without risking a rekindle. Thermal imaging cameras are a great tool to assist with targeted overhaul efforts. Do you need to throw all of the contents out of the windows, or can you leave most of them in place or simply move them to another side of the room so they can be easily placed back by matching their legs and arms to the protected areas on the floor and walls?

When minimal overhaul is infeasible, photographs are better than nothing. How do you get the photos? One option is to place a point and shoot digital camera in your first-due apparatus, or assign one to the duty officer. Another is to bring your Fire Investigator in with you. Let them gear up before you begin overhaul and take a minute or two to allow them to snap some photos before taking out that wall, or pulling a ceiling. One of the things for which I was most grateful when working in New Milford, CT, was the fantastic job all three volunteer fire departments did coordinating overhaul with me. The photos I was able to take before overhaul took place were often invaluable to the investigative process. If all else fails, if possible take a few photos with your phone and let your fire investigators know that you have pre-overhaul photos.

When overhauling, please, please, please do not use gas-powered tools or equipment! If we do need to take samples, or if an accelerant detection canine will be brought in, use of and/or fueling of anything gas-powered can contaminate the scene. Please also do not turn on or off circuits in any electrical panels, remove or disconnect appliances or any mechanical systems and components. If the utility company is unavailable to turn off the power at the pole or transformer or to remove the meter, you may turn off the main breaker or fuse to the main panel. Leaving all other circuits as they are allows us to see which circuits tripped along with identifying those that were energized at the time of the fire. This aids us with arc mapping, which is a required process per NFPA 921: Guide to Fire and Explosion Investigations.

Do you need to pull the wall in the room of origin to access the stud bays and framing behind it to check for extension? Can you go to the adjoining room and pull the wall that backs onto the same wall in the room of origin to open the same stud bays, thereby preserving the burn patterns in the room of origin? Yes, you are doing more damage to the home and impacting a potentially uninvolved room. However, if a home has had that much smoke, heat, and water throughout the structure, the reality is every room is likely going to be stripped down to the studs and reinsulated, with new wallboard installed. Floors and walls are often removed due to odors, the potential for mold, and cupping and swelling from water damage. That extra damage really is not additional damage, and it may allow the homeowner to recover their deductible which is the out-of-pocket portion for their homeowner’s or renter’s insurance, typically in the range of $500 to $2,000.

After all, public side or private, it is always about helping people. 

KAREN FACEY is a Project Leader and Senior Fire Investigator for Liberty Mutual and Safeco Insurance. She was previously the fire marshal for New Milford, CT, for eight years. She has been a Connecticut certified fire marshal since 2005, and has an M.S. in Administration and Emergency Management from Fairleigh Dickinson University and a B.S. in Fire Science from the University of New Haven. Facey is an IAAI-CFI, NAFI-CFEI, and NFPA-CFPS, and has been involved in public safety and the fire service since 1993. She can be reached at [email protected]

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