Evidence Preservation in Fire Cases
Article By Pedro Echarte, The Haggard Law Firm
When handling personal injury/wrongful death cases resulting from fires, the importance of quickly notifying the property owner of the potential claim and gaining immediate access to the property to the perform a site inspection is imperative. While in other types of cases (e.g., drowning, automobile, aviation, medical malpractice, negligent security) the evidence required to prove your case is generally preserved, that is generally not the case when it comes to litigation stemming from fires because landowners (whether residential or commercial) generally want to promptly repair their premises after a fire in order to avoid a significant loss of income. Once the property is altered or repaired, it will be difficult to determine not only the cause of fire, but also what fire safety measures that property had at the time of the fire and whether they operated as intended.
In fire cases that we have handled, we have accomplished early notification to the potential defendant and coordination of a site inspection in one of two ways. Generally, we first attempt to reach the property owner directly, informing them of the potential claim and requesting access to the property. If we are unable to contact the property owner or if the property owner refuses to give us access to the property, we file the lawsuit along with an emergency motion seeking to enjoin the property owner from repairing the property and requesting access to the property for a site inspection.
Getting access to the property is only half the battle, however. It is imperative that an attorney have access and relationships with experts as often times you will only have a few days to coordinate a site inspection and travel for your experts. Because the cause of fire is generally unknown at the time of the fire, a proper site inspection can require more than one expert.
For example, in a recent case we handled where the cause of fire was undetermined at the time of our inspection, we flew in a fire expert, an electrical expert, and a code expert for the inspection because we were unsure what exactly we would need. Even though the costs associated with such an inspection are significant, any attempt to cut corners at the inception of a fire case will only negatively affect the case and could jeopardize your client’s claim entirely.
It should be noted that one very common misconception is that the government entities investigating a fire will determine the cause and origin and detail the fire safety measures in place at the time of the fire in a report. While sometimes these reports can have information that may be helpful in a resulting civil lawsuit, relying solely upon these reports is a fatal mistake because the governmental investigations are not usually focused on the same issues that will become relevant IN your case, especially with respect to the fire safety measures in place at the time of the fire.
In November of 2016, we settled a fatal fire case where we discovered that a mobile home (pictured above) did not have an adequate number of smoke detectors. The one smoke detector found in the charred rubble of the fire that claimed the life of 26 year old Jemarr Anderson was located on the opposite side of the home from where the father of a 5 year old died in his sleep. That case was settled for $2.3 Million. (Click here for more on Anderson v. Christopher Campolongo et al)
In summary, while the resources that need to be expended at the outset of a fire case (well before there is even a determination as to whether there is any civil liability) are significant, there is no substitute for an immediate site inspection with the appropriate and qualified experts in a fire case. This early investigation will make or break your case.