Successful Fire Investigations From One Assistant Attorney General’s Perspective (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 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 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 (Reckless Burning, Negligent Fire Spread, Etc.)  Violations of Orders or Rules in WAC (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?