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?