Successful Fire Successful Fire InvestigationsInvestigations
From One Assistant Attorney From One Assistant Attorney General’s PerspectiveGeneral’s Perspective
(Presented by: Mike Rollinger)(Presented by: Mike Rollinger)
Why Investigate Fires? Information Prevention Accountability
Criminal Civil
Fire Causes Natural Human
Intentional, Malicious or Reckless Negligent Other
Formula for Success
Liability + $ + Solid Investigative Report
Expert Fire Investigator
Qualified by Training or Experience Systematic Approach Findings Documented Conclusions Corroborated and
Supported Scientifically Other Reasonable Potential Causes
Addressed
Expert Witness v. Fact Witness
Expert Qualified by Knowledge, Skill, or Experience
Allowed to Draw Inferences and Form Conclusions
Most Fire Cases Require Expert Testimony
Trial Court Judge Acts as Gatekeeper for Experts
A Good Investigator
Promptly Responds to Scene Identifies Origin and Potential
Cause(s) Ties Proof of Fire Origin and Cause
With Proof of Negligence When Negligence Exists
Does Not Let the Investigation Grow Cold
A Good Investigator (cont.)
Focuses on Who, What, When, Where, Why and How
Focuses on Facts, Remains Objective, and Does Not Jump to Conclusions
Pays Attention to Detail Follows the Evidence Knows Limitations and When to Seek
Assistance
A Good Investigator (cont.) Captures, Preserves and Develops
Evidence in a Timely Manner Gathers Evidence to Support All
Elements in Negligent Fires Identifies All Causes and Liable
Parties Anticipates Defenses Willing to Learn and Self-Educate
A Good Investigator (cont.)
Understands the Importance of Taking Good Statements
Takes Good Statements Gets It Right the First Time Understands the Importance of
Documentation and Good Report Writing
Writes Solid, Well-Documented Reports
Report of Investigation Complete Story in Documented
Form Self-Explanatory (Stand Alone) Explains What Happened and Why
Party Is/Is Not Liable Findings Supported by Evidence
and Identified for Reader to Follow Thought Process of Investigator
Report of Investigation (cont.)
Facts vs. Unsupported Conclusions or Opinions
Balanced Including Facts Both Favorable and Unfavorable to Findings
Objective vs. Subjective Inconsistencies and Gaps Identified
and Resolved When Possible Rules Out or Identifies Alternative
Causes
Report of Investigation (cont.)
Attachments and Exhibits Consistent With Narrative and Accurately Identified
Photos and Diagrams Explained and Tied Into Narrative of Report
Describes Investigative Efforts and Results Even If Unsuccessful
Submitted for Timely Review and Feedback
Report of Investigation (cont.)
Timely Follow-Up and Completion Scrutinized Closely by Insurance
Companies and Defense Counsel Strength of Report, Investigator
and Investigation Dictates Outcome of Claim
Deposition of Investigator Is Designed to Identify Weaknesses in Report and Investigation
Timeliness
Primary Duty of Investigator Until Finished
Timely Review and Follow-Up Quality/Quantity of Evidence
Decreases With Time Get It Right the First Time
Circumstantial Evidence
Often Relied Upon in Fire Cases Can Carry Same or Greater Weight
Than Direct Evidence Must Lead a Reasonably Cautious
Mind to the Conclusion Drawn by the Investigator
Seizure of Evidence RCW 76.04.015 Authorizes DNR Fire
Investigators to Seize Evidence Related to Fires Requires Notice of Intent Reasonable Opportunity to Inspect
Before Seizure Must Return Within 7 Days Upon Written
Objection Exceptions If Used in Business or Utility
Negligence = Conduct(No Intent or State of Mind Involved)
Requires Proof of Four Elements Duty or Obligation (a.k.a.
Standard of Care) Breach of Duty or Obligation Causation Between Breach and
Damage Loss or Damage
What is Applicable Standard of Care?
No Magical Set of Rules Look to Law, Regulations, Code,
Ordinances Ordinary Reasonable Person (ORP)
Standard Risk of Harm Gravity of Harm Social Value of Interest Threatened Social Value of Activity
Guides to Identify Standards of Care
Industry Practices Custom in the Community Past Practice or Custom Common Law
Principles of Liability If More Than One Responsible Party, Bill
Each Party for Entire Amount In Washington, if More Than One Person Is
Liable to a Faultless Claimant on an Indivisible Claim for the Same Harm, the Liability of Such Persons Will be Joint and Several
Each Party Responsible for Entire Amount and Can Seek Contribution From the Other Party Based on Comparative Fault
Principles of Liability (cont.)
Generally, Can’t Hold Parents Liable for Negligent Acts of Child RCW 4.24.190 Imposes a $5,000 Limit on a
Parent’s Liability if His or Her Minor Child Willfully or Maliciously Destroys the Property of Another and Limits Liability to Owner of Destroyed Property
Statute Implicitly Protects a Parent From Liability for the Negligence of Minor Child
Principles of Liability (cont.)
Parents Liable for Negligent Supervision of Minor Child if They Know of Child’s Dangerous Proclivity and Fail to Take Reasonable Measures to Control It Must Know or Have Reason to Know That Parent Has
Ability to Control Child and Knows or Should Know of Necessity and Opportunity for Exercising Such Control
Although Not Legally Liable for Negligence of a Minor Child, a Parent’s Insurance Policy May Include the Minor Child as an Insured and Cover the Claim
Principles of Liability (cont.)
Child Liability Conclusive Presumption of Incapacity of Minor
Child Under 6 to be Negligent After Sixth Birthday, Whether a Child Is
Negligent Is a Question of Fact Child Under 8 Years Is Incapable of Committing a
Crime in Washington Child of 8 Years and Under 12 Presumed
Incapable of Committing a Crime But Can be Rebutted
Criminal Citations
Issue When Appropriate Violations of RCW 76.04 (Reckless
Burning, Negligent Fire Spread, Etc.) Violations of Orders or Rules in
WAC 332-24 (Burn Permit Violations, Etc.)
Examples
Slash Pile Burn Burnt Valley Little Squirt
Consultant’s Report
If He Had Conducted Proper Investigation, Other Investigators Would be Able to Review Facts and Data, Test His Hypothesis, and Validate His Opinion
Nationally Accepted Standards for Wildland Fire Origin and Cause Investigations
Standards Require Application of Scientific Method to the Investigation of Wildland Fires
Investigator Must Gather Facts, Develop Hypotheses, Test the Hypotheses Against the Known Facts and Data, and Select the Best Hypothesis That Best Fits All of the Known Facts
Consultant’s Report (cont.)Flaws: No Systematic Methodology (No Grid Search) Failure to Identify Potential Witnesses and Conduct
Timely Interviews (Who Reported Fire and to Whom)
Failure to Properly Document Scene (Six Photos Don’t Show Recognizable Burn Patterns)
Failure to Follow Up on Leads and Conduct Thorough Investigation (Temperature of Burn Pile)
Failure to Adequately Eliminate or Address Other Possible Causes (No Wx Data)
Sample Statement 1 Started Small Burn Approx. 8-8:15 Didn’t Feed Fire Past 11:00 Left After Checking Fire 2:15 We Were Burning Scrap Wood From
Construction Around Our Cabin (I Wrote the Statement for
Landowner)
Sample Statement 2
Talked to: Charles Statement Taken by Investigator Neighbor (Mike) He Talked to Him and
Said That He Had to Put This Previous Fire Out One Night
Signature of Charles Written by Investigator Witness Signature
Escaped Slash Pile Example
Pre-Existing Conditions Circumstances Leading Up to
Ignition and Fire Spread Standard of Care and Causation What to Include in Report What to Do With What’s Leftover
Burnt Valley Fire Caused by Fence Energized With
Uncertified Controller in Violation of Forest Protection WAC When Animal Ran Into Exterior of Fence
What Was Purpose of WAC and Requirement for a Certified Controller?
Was Landowner or Animal Responsible for Fire?
Was Landowner Aware of WAC? Should Landowner be Aware of WAC?
Little Squirt Cable Rub Took Place Several Days Before Fire
Escaped Where Cable No Longer Located Determination Based on Evidence Found in
Specific Origin Area, Burn Patterns Left on Site, Statements From Logging Crew and Elimination of Other Causes
75 Photos With Good Captions That Told the Story in Pictures
Five Comprehensive Statements From Logging Crew and Others
Found Ferrous Particles and Sent to Lab
Little Squirt (cont.) Ruled Out Other Causes
Described All Equipment That Could Cause a Fire and Then Ruled Out Because of Fire Indicators and Origin Area
Incendiary (Partially Included/Excluded) No Incendiary Device Found, But Many Arsonists Use Portable Devices, No Easy Access to Site and Little Concealment
Computerized General Origin Map With Indicators and Landmarks Clearly Depicted
Diagram and Information on Cable Logging System Used
Report Tied Everything Together
My Role
Not to Criticize DNR But to Assess Report With Critical Eye
Need to Know Both Strengths and Weaknesses of Case Prior to Filing Claim/Lawsuit
Must Go Directly to Sources to Obtain Information Regarding the Fire
Areas for Improvement
Timeliness Completeness Origin and Cause With Insufficient
Discussion of Negligence Accuracy and Reliability Receptive to Constructive Feedback
The End
Questions?