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Fire Scene Spoliation: Have We Gone Too Far?

June 1, 2002

This article was published in For The Defense, Vol. 44, No. 6, June 2002. © Copyright 2002 DRI, Inc.

Over the past fifteen years, the amount of case law and commentary concerning spoliation of evidence has exploded. This attention has been positive in terms of highlighting and dealing with the loss of evidence involved in litigation. Consequently, today’s litigants better appreciate the need to preserve evidence.

Under some circumstances, however, something good can turn bad. For instance, litigants are increasingly asserting spoliation claims relating to evidence that is not at the heart of a particular matter, but rather part of the collateral issues in the dispute. This is illustrated by allegations that an entire fire scene is evidence that must be preserved, and that the failure to do so constitutes sanctionable spoliation. A claim of spoliation can thus become more advantageous for the spoliation victim than the actual evidence in the case. Commentators have described the scenario as follows:

Although the spoliated evidence may at first frustrate the party who desired it, the spoliation can actually benefit that party through the imposition of sanctions, evidentiary presumptions, or even a separate cause of action for spoliation of evidence against the spoliator.

Sparkman & Reis, “Spoliated Evidence: Better Than The Real Thing?,” 71 Fla. B.J. 22 (July/August, 1997).

This article will address how the courts are handling fire scene spoliation, especially in subrogation cases, and the impact they are having on fire litigation. It will also describe how fire scene spoliation could have a dramatic effect on public officers engaged in fire investigations.

Spoliation Principles in General 

“Spoliation of evidence is the destruction, significant alteration, or non-preservation of evidence that is relevant to pending or future litigation.” Bell, Koesel, & Turnbull, “Let’s Level The Playing Field: A New Proposal For Analysis of Spoliation of Evidence Claims in Pending Litigation,” 29 Ariz. St. L.J. 769, 771 (1997). Its origins were established by the common law principle of “contra spoliatorem omnia praesumuntur,” to wit: “all things are presumed against the destroyer.” Id. at 773; Armory v. Delamirie, 93 Eng. Rep. 664 (K.B. 1722).

A bevy of recent court decisions addresses how to handle the spoliation of evidence, but a uniform approach has not yet developed. In some instances, drastic remedies have been deemed appropriate, including the dismissal or default of a claim. In other circumstances, witnesses have been barred from testifying, or otherwise material evidence has been excluded at trial. The most popular remedy has been the granting of a jury instruction declaring an adverse inference against the spoliator. In a minority of jurisdictions, an independent tort of spoliation has been recognized.

Although every jurisdiction has its own spoliation standards, some commonality can be found. Generally, courts will analyze (1) the importance of the evidence that has been lost, in terms of the prejudice incurred by the non-spoliating party, and (2) the fault of the party responsible for the spoliation. Depending on the circumstances, courts will then choose the fairest remedy. The court’s consideration for imposing a spoliation sanction “can be boiled down to. . . the importance of the evidence and the degree of bad faith in its destruction.” Sparkman & Reis, supra, 71 Fla. Bar. J. at 24.

Employing the factors of prejudice and fault, courts have likewise evaluated spoliation concerns in fire-related litigation. In a typical case, Federal Insurance Co. v. Allister Manufacturing Co., 622 So. 2d 1348 (Fla. App.1993), a subrogating insurer brought a lawsuit against the manufacturer of an electric garage door opener system, alleging that the system was defective and caused a house fire. Immediately after the loss, a public fire official investigated the fire and removed part of the garage door opener system because it appeared to be a possible cause for the fire. The product was then given to a subrogating carrier’s fire investigator. The remains, however, contained only a stub of the power cord; a portion of the power cord was never found. Afterwards, the insurer’s investigator opined that the portion of the power cord that was not found was the cause of the fire. The carrier’s investigator also testified that the power cord had been damaged during either manufacture or installation.

After litigation commenced, the defendant-manufacturer in Allister sought access to the remains of the garage door opener system, but was told it had been discarded. The defense expert nevertheless asserted that the fire started in one of the branch electrical circuits located in the house’s attic. The defense expert also testified that the product was not the cause of the fire, and that the power cord was damaged as a result of the fire.

The trial judge in Allister ruled that the case would be presented without any evidence concerning the product because of the loss of its remains. The plaintiff-insurer consequently conceded that it could not prove its case due to this ruling, and the trial court granted the defendant’s motion for summary judgment.

Upon such facts, the appellate court in Allister reversed the lower court’s order and found that the trial judge should have found a better remedy.

[T]here is insufficient prejudice demonstrated by this record to support the trial court’s ruling that the plaintiff would be precluded from putting on any evidence relating to the garage door opener system including the power cord. Since the loss of this evidence, so far as this record shows, was inadvertent and not for an improper purpose, this sanction, which was the equivalent of a dismissal, was not warranted.

622 So. 2d at 1352. Allister is instructive because, after applying the factors of prejudice and fault, the court found that dismissal was improper when evidence that was not at the heart of the matter was lost. Because the only evidence that was lost was collateral to the cause of the fire, there was no justification for a spoliation sanction. See also Transamerica Insurance Group v. Maytag, 99 Ohio App. 3d 203, 650 N.E.2d 169 (1994)(dismissal of claim was improper when the item lost was not directly at issue in the claim).

The Entire Fire Scene as Spoliated Evidence 

Federal Insurance v. Allister is representative of a traditional approach. The court determines whether the items lost were material based on its assessment of the amount of prejudice incurred by the non-spoliator. Depending upon the amount of prejudice, as well as who is at fault for the spoliation, the court fashions a remedy. In recent years, however, litigants in subrogated fire cases now argue that the entire fire scene constitutes material evidence. Litigants claim that without being given an opportunity to inspect all of the evidence from a fire scene, no matter how trivial, spoliation has occurred, and a sanction should be imposed. The courts have struggled with this argument, because it is a truism that the entire fire scene constitutes evidence. 

The Minority View

Recent arguments that the entire fire scene is actually evidence, and that the failure to save the fire scene constitutes spoliation, are troubling because in some instances, courts have been persuaded to completely dismiss claims. For example, in Allstate Insurance Co. v. Sunbeam Corp., 865 F. Supp. 1267 (N.D. Ill. 1994), a trial judge held that a subrogating carrier’s failure to preserve evidence from a fire scene justified a dismissal. In Sunbeam, an Allstate investigator preserved “only the service tank that was connected to the grill, the connecting fittings, the remains of the regulator, and the remains of the burners” from a gas grill that allegedly caused a fire. Id. at 1270. The Allstate investigator also directed that the remaining items of evidence be thrown away, including other items in the area where the fire started. The defense argued that the failure to preserve this evidence constituted the type of spoliation that justified dismissal. The trial judge agreed because the discarded evidence was critical to the defendant’s ability to present a credible defense.

The rule requiring preservation of evidence rests on basic fairness, and there is no reason to limit it to the product itself. This is especially applicable to Allstate since it all along intended to proceed in a subrogation suit. If a would-be plaintiff is in control of evidence he can reasonably preserve, and he knows or should know that it is relevant and material, he is not at liberty to destroy or dispose of it without notice to the defendant.

Id. at 1278. It is important to note that the court’s analysis in Sunbeam also rested upon the fact that the subrogating carrier made hardly any effort to notify the defendant of its claim.

In Hoffman v. Ford Motor Co., 587 N.W.2d 66 (Minn. App. 1998), the Minnesota court reached essentially the same result. It found that the fire scene was relevant evidence that needed to be saved.

As the experts indicated, a fire scene itself is the best evidence of the origin and the cause of a fire. This scene consisted of a house, a garage, motor vehicles, gasoline-powered implements, combustible materials, and fire debris. The scene was of unquestionable relevancy.

Id. at 71. The court found that dismissal was an appropriate remedy because the defendant had been given no opportunity to review the fire scene. The failure to give proper notice to the tortfeasor, when such notice may have given the defendant an opportunity to conduct its own investigation, justified enough fault and prejudice to justify a dismissal.

Fortunately, Sunbeam and Hoffman do not represent the majority view. The results in these two cases can also be explained in terms of the late notice and relative importance of the lost evidence. Nevertheless, Sunbeam and Hoffman remain problematic in the event their holdings are too broadly applied.

The Majority View

Most jurisdictions that have considered allegations of spoliation with respect to the loss of fire scene evidence have not imposed any sanctions, or, when sanctions have been imposed, they were limited. The cases where no sanctions have been imposed typically relate to situations where the defense expert is able to offer an opinion as to how the fire started, and the primary evidence from the fire is still available for inspection.

The decision of a New York court in State Farm Insurance Co. v. Amana Refrigeration, Inc., 266 App. Div. 2d 372, 698 N.Y.S.2d 300 (1999), illustrates this point. The trial court dismissed the claim on the basis that a toaster oven that was near the allegedly defective refrigerator had not been saved from the fire scene, and it also had not been examined as a possible cause for the fire. The manufacturer contended that its defense was compromised because of the loss of the toaster oven. The Amana court noted, however, that “[t]he toaster oven, which the defendants contend was an alternative cause of the fire, was not a key piece of evidence that should have been preserved.” 698 N.Y.S.2d at 301. Because there was sufficient evidence to establish that the refrigerator was at the origin of the fire, the Amana court found that there was no basis for any spoliation sanction.

Another instructive case is Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 2001 Pa. Super. 232, 781 A.2d 1263 (2001), where the appellate court considered a trial judge’s refusal to dismiss a case on the basis of spoliation. Mount Olivet concerned an immersion heater in a large baptismal pool, which was supposedly defective and subsequently caused a fire. The manufacturer argued that the failure to preserve evidence from the fire scene significantly prejudiced its defense. 781 A.2d at 1268-69. The manufacturer further argued that notice was provided 22 months late, and the fire scene was neither photographed nor preserved properly. The defense argued that the entire fire scene needed to be preserved in order to allow for the development of alternative theories for the fire.

The court in Mount Olivet found that it was proper for the trial judge not to impose a spoliation sanction. It pointed out that the entire fire scene need not be preserved when the likelihood of a secondary source for the fire is relatively low:

Appellant suffered a relatively low degree of prejudice. The record reveals that Appellant presented a vigorous defense to the Church’s theory of causation, and presented a renowned fire expert to render an opinion based on the Church’s evidence. The investigations of the Church and the fire marshal did not reveal an alternative source of the fire; thus, the failure to preserve the entire scene resulted in only a speculative degree of prejudice.

Id. at 1272. The Mount Olivet court, in a concurring opinion by Judge Del Sole, also noted (id. at 1275-76):

The doctrine of spoliation applies to cases in which the product is damaged or missing. In this case the product was preserved. The Church brought this action against the Appellants based upon the alleged failure of its product, and the Church preserved that product for purposes of litigation. The Church had the obligation to meet its burden of proof to establish all of the elements of a strict liability case by a preponderance of the evidence, including causation. Appellants were free to argue that the product was not defective or that there existed alternative causes for the fire. However, the Church cannot be held responsible for maintaining the entire fire scene. The Church, like other fire victims, wished to rebuild. It was entirely reasonable for the Church to take such action. To require fire victims to delay reconstruction until all possible causes are identified, persons are notified and ‘reasonable time’ for inspections expire, places an unnecessary and unreasonable burden on these victims. Such delay would require the victims secure their premises, postpone reconstruction and endure further disruption in their lives. In my judgment, this is not necessary where the party making the claim has preserved the product it alleges caused the damage.

In Mount Olivet, the trial court did not impose a spoliation sanction because the critical item of evidence, i.e., the product, was preserved. The Mount Olivet court further stated that the manufacturer was able to present expert testimony disputing the cause of the fire. The defense’s ability to obtain such opinions supported the denial of spoliation sanctions, which seems critical in those cases where no spoliation sanction is imposed.

Another example of this notion is Roskam Baking Co. v. Lanham Machinery Co., 87 F. Supp. 2d 758 (W.D. Mich. 1999), where the trial court denied the defense’s request for dismissal even though the fire scene was razed prior to the defendant being notified of the fire. The trial judge did not impose a spoliation sanction, noting the defense’s ability to rebut plaintiff’s claim. The court stated, 87 F. Supp 2d at 761:

[D]uring the hearing, Mertens was adept at questioning the credibility and veracity of Hoffman’s theories and arguments. Mertens effectively raised the issues of improper measurements made by Hoffman, conflicting eyewitness testimony putting the fire starting south of the oven, and the lack of gathering certain items of physical evidence. . . .  Mertens’ ability to discredit and call into question both Hoffman’s fire scene investigation and his analysis remove considerable prejudice. . . 

Mertens is able to both develop his own theories regarding possible causes of the fire and call into question the theories put forth by Roskam’s experts. As a result, barring Roskam’s proposed expert opinions is not necessary to prevent prejudice. . . 

Courts are generally inclined not to impose a spoliation sanction due to the disruption of relatively collateral evidence from the fire scene. This is especially the situation when the defendant is able to provide a viable defense, and so long as no truly prejudicial late notice to the defendant occurred. See, e.g., Driggin v. American Security Alarm Co., 141 F. Supp. 2d 113 (D. Maine 2000); Mayes v. Black & Decker (U.S.), Inc., 931 F. Supp. 80 (D.N.H. 1996); Hendricks v. Great Plains Supply Co., 609 N.W.2d 486 (Iowa 2000). Nevertheless, a growing trend favors sanctions in the event a critical portion of the fire scene has been spoliated. The analysis in support of sanctions remains the same, but in those instances where sanctions are imposed, they typically consist of an evidentiary inference adverse to the spoliator’s interests.

The opinion in Henkel Corp. v. Polyglass USA, Inc., 194 F.R.D. 454 (E.D.N.Y. 2000), demonstrates this notion. The plaintiff sustained fire damage when its warehouse ignited several hours after a roofer left the work site. A determination that the roofer’s torch started the fire was independently formed by the public fire officials and the insurer’s investigator. However, the fire scene was demolished three weeks after the fire, and the defendant was not notified of the fire until it received service of process. The defendant retained a fire expert, but he could not determine the specific cause for the fire, although he did point out inconsistencies within the investigations of the public and private fire officials.

The trial court in Henkel was disturbed that the plaintiff made no effort to notify the defense. The court also felt the defense was prejudiced enough to justify some sort of sanction against the plaintiff.

Because plaintiff has had the opportunity to have its fire expert inspect the fire scene and defendant has not been afforded the opportunity either to inspect the scene or any actual fire debris, the evidentiary playing field between the two parties is clearly not level. Because plaintiff is responsible for this evidentiary disparity, some form of sanction is appropriate. . . . 

The more appropriate remedy is an adverse inference charge instructing the jury that it may infer from plaintiff’s removal of the fire debris that the evidence from the fire scene would have been unfavorable to the plaintiff. This remedy will satisfy both the punitive and remedial purposes of adverse inference sanctions by punishing plaintiff for its culpable destruction of the evidence and by restoring the “prejudiced party to the same position. . .  that it would have held if there had been no spoliation.”

194 F.R.D. at 457. The analysis in Henkel is consistent with the majority view, which balances the degree of fault and prejudice in an effort to be fair to all parties.

The opinion in American States Insurance Co. v. Tokai-Seiki (H.K.), Ltd., 704 N.E.2d 1280 (Ohio Com. Pl. 1997), is an enlightening example of a trial court’s effort to find a fair sanction. In Tokai-Seiki, the defense argued that the failure to preserve an entire fire scene warranted dismissal. The court disagreed with the defense, but also granted an adverse jury instruction with respect to a portion of the lost evidence.

The relative importance of the evidence in addition to its mere relevance must be weighed in fashioning a just result. The loss of an essential item of evidence is far more prejudicial than a mere relevant piece of evidence. Almost any item found at a fire scene is arguably relevant. Obviously, not all such items are foreseeably essential or foreseeably relevant. Not all items arguably relevant at a fire scene may practically be retained. Consequently, the court must determine the reasonableness of the offending party’s action in fashioning a just result. . . . 

Nonetheless, defendants-movants contend that the entire fire scene should have been preserved. . .  Under the circumstances of this case, the court finds that this would be unreasonable and therefore not required. The rubble and debris of the entire fire scene were more than a source of evidence. They were the remains of a home to be rebuilt and constituted a health hazard. The Maciks could not be reasonably required to live in a motel for an even more extended period of time while the entire group of potential future litigants was ferreted out, notified, and given an opportunity to inspect the fire scene.

The court finds that at the time the carpet was made unavailable, plaintiffs or their agents knew or should have known that the remains of the carpet and the hot tub frame would be particularly relevant in a suit. An awareness by plaintiffs or their agents that future litigation would likely result is present in this case. The amount of the claim involved, the prompt response by plaintiff sending a fire investigator and attorney to the scene to determine the likely cause of the fire, the known identity of one defendant, and the other facts and circumstances of the case all weigh in favor of this awareness. . . . 

Although not all items arguably relevant at a fire scene are worthy of retention, sampling, or documentation, when the item made unavailable by the offending party is inextricably connected to the evidence which the offending party believes to have caused the fire and if its importance is foreseeable, such evidence should be retained for inspection until the opposing party has a reasonable opportunity, after notice, to conduct an examination by its experts.

704 N.E.2d. at 1283—84. The Tokai-Seiki court determined that: “Where one party has control of a fire scene which is cleared before an adverse party has access to inspect it, the party in control of the scene has a responsibility commensurate with its expertise and resources to take reasonable measures to preserve highly relevant evidence or otherwise adequately document it.” Id. at 1285. The language in Tokai-Seiki is a clear example of the analysis employed by the overwhelming majority of courts: A balance between prejudice and willfulness, along with the ability to fashion a fair result, ultimately leads to a proper sanction, if any. It is also noteworthy that the subjective awareness of the spoliation had an effect on the sanction imposed.

There is no better example of a court analyzing a party’s subjective awareness of the need to preserve evidence than Baliotis v. McNeil, 870 F. Supp. 1285 (M.D. Pa. 1994). In Baliotis, plaintiffs were the father of a deceased child and a subrogating insurer. The fire scene was destroyed before the defense had an opportunity to conduct an investigation. In fashioning its remedy, the Baliotis court imposed a different sanction for each plaintiff. With regard to the insurer, it stated: “Property insurers who permit the destruction of a fire scene after identifying subrogation targets should suffer some sanction where, as here, it is clear that relevant evidence has been lost.” Id. at 1292—93. However, with regard to the layperson, no sanctions were imposed.

While there may be circumstances under which it is appropriate to impose a sanction adversely affecting a blameless party for a third-party’s destruction of evidence,. . . the facts of this case do not warrant such a conclusion. If the “fire scene” had been obliterated by. . . a subsequent fire, for which the Baliotises were not responsible, [the defendants]. . . would not be entitled to preclusion of otherwise relevant evidence. The fact that. . .  [the insurer], after identifying. . . [a target] as a potentially responsible party, authorized destruction of the evidence should not yield a different result insofar as the Baliotises are concerned.

Id. at 1290. Baliotis demonstrates that a party’s subjective awareness of the need to save evidence can be determinative of the type of sanction, if any, that is imposed. See, e.g., Howell v. Maytag, 168 F.R.D. 502 (M.D. Pa. 1996); Cincinnati Insurance Co. v. Synergy Gas, Inc., 585 So. 2d 822 (Ala. 1991); Vesta Fire Insurance Co. v. Sears, Roebuck & Co., 705 So. 2d 382 (Ala. App. 1996).

The number of spoliation claims arising from the loss of fire scene evidence is growing. Some courts have imposed the drastic sanction of dismissal, but these courts focus primarily on the large degree of fault by the spoliator in not providing timely notice to the defense, and also on the fact that a primary piece of evidence was lost or destroyed. In other instances, where prejudice cannot be demonstrated and the spoliation victim is able to mount an effective defense, no sanctions are typically imposed. However, most courts have fashioned a limited sanction based upon the degree of prejudice to the non-spoliator and the degree of fault by the spoliator. Baliotis illustrates this point well.

Public Official Liability for Spoliation 

Fire scene spoliation commonly takes place at the hands of a public officer engaged in the investigation of a fire. The courts nevertheless find that the public officers are neutral actors, so their ability to testify as neutral witnesses generally helps ease the prejudice to the non-spoliator.

One such case is Morin v. Holmes Products Corp., 11 Mass. L. Rptr. 412, 2000 Mass. Super. LEXIS 85, where a homeowner and its subrogating carrier brought a product liability claim arising from a fire. The local fire officials determined a general point of origin for the fire and identified a faulty fan as a possible cause. The public officials took no photographs and no debris from the fire scene. The subrogating carrier had its expert retain the fan, but he did not retain any other evidence. The defense in Morin argued that the failure to preserve the other suspected causes of the fire warranted spoliation sanctions. In denying sanctions, the court relied on the fact that the public officials were involved in the alleged spoliation; and consequently, they were available as witnesses for both parties. The question prompted by Morin is what should happen if the actions of the public officials were solely responsible for the loss of evidence, and the lack of that evidence constituted spoliation that could not be remediated.

A minority of jurisdictions recognize the tort of spoliation. One such jurisdiction is Florida. See Bondu v. Gurvich, 473 So. 2d 1307 (Fla. App. 1984). The scope of spoliation law is ever-broadening in Florida, where the courts have recognized a duty to preserve evidence by one who is not a party to litigation, so long as the non-litigant knew, or should have known, that the evidence was material to prospective litigation. See Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088 (Fla. App. 2001); St. Mary’s Hospital, Inc. v. Brinson, 685 So. 2d 33 (Fla. App. 1996). Accordingly, a public official conducting a fire investigation would probably also have a duty to preserve evidence, as he certainly would be aware that his investigation could be part of prospective civil litigation.

Of course, fire officials have historically enjoyed sovereign immunity. Florida courts, as in the majority of jurisdictions, have found no liability for officials’ negligence in fighting fires because firefighting is deemed a governmental function for which there is no private equivalent. See City of Daytona Beach v. Palmer, 469 So. 2d 121 (Fla. 1985). However, Florida is like most jurisdictions because it waives sovereign immunity “under circumstances in which the state or such agency or subdivision, if a private person, would be liable to the claimant, in accordance with the general laws of this state. . . .” See Fla. Stat. § 768.28(1). Because Florida recognizes that private individuals who are not parties to litigation can be liable for spoliation, it seems only logical that public officers engaged in fire investigations have similar liability: If a private fire investigator has liability for spoliation, the statutory waiver of sovereign immunity should therefore apply.

It seems reasonable to believe that a public official engaged in a fire investigation, wherein he is seeking to determine criminal liability, should have no civil liability for spoliation. After all, with regard to criminal investigations, no individuals in the private sector typically perform such work. Clearly, public officials performing a criminal investigation, including one involving a fire, should be immune from civil liability for spoliation because they are employed in a function that only public officers can fulfill. However, once the public fire official determines that a crime has not occurred, i.e., that an arson has not taken place, it also seems logical that any further investigation could expose the public official to liability for the failure to properly preserve evidence at a fire scene. This is because once the investigation is not a criminal one, the public officer is acting much like a private fire investigator. As a result, because the public officer is then engaged in a matter that affects civil liability, his or her exposure to spoliation claims — per the waiver of sovereign immunity — now arises.

Even if a court were to find that the public officer’s investigation of a fire is generally immune from liability, a public officer can be held liable on additional bases. The law of Florida (and many other jurisdictions) generally holds that if a public officer takes on a “special duty” toward a member of the public, sovereign immunity can be waived. See State Department of Highway Safety v. Kropff, 491 So. 2d 1252 (Fla. App. 1986). In fact, one Florida court found that a special duty exists with regard to the preservation of evidence.

In Brown v. City of Delray Beach, 652 So. 2d 1150 (Fla. App. 1995), the court found that a special duty was created when the City of Delray Beach promised to save evidence from a hit-and-run automobile accident. The City embarked upon a criminal investigation and refused to provide the plaintiff with access to the evidence until after the criminal investigation was completed. The plaintiff’s counsel requested that the City save certain evidence, and the City assured that such would be done. When the criminal investigation was abandoned, it was discovered that the evidence had been discarded. The court found that when a public official agrees to save evidence, it creates a special duty for which civil liability for spoliation can attach if the evidence is lost.

A reasonable extension of Brown v. Delray Beach would lead one to believe that a public fire investigator, engaged in the investigation of a fire involving the retention of evidence that could end up in civil litigation, could be liable for his acts and omissions concerning the preservation of a fire scene. Accordingly, when performing a fire scene investigation beyond their criminal investigation, public officials have potential liability for spoliation of fire scene evidence. Public officials thus need to make more considered decisions as to whether they wish to engage in fire investigations that have an impact on civil litigation.

Ramifications and Recommendations 

It seems apparent that public officers may now, at least in some jurisdictions, have exposure to civil liability for their actions during a fire investigation. In those jurisdictions where a tort of spoliation is recognized, and where a public officer is engaged in actions that bear on civil liability, a duty arises for the proper preservation of evidence, and the failure to comply can lead to civil liability. This is significant in subrogated fire litigation where damage to a fire scene occurs due to the actions of the public authorities. Litigants could seek to impose liability on public officers who may have impaired their ability to determine the origin and cause of a fire.

More broadly, two significant lessons can be learned from the case law. First, it is critical to preserve whatever evidence can be saved for as long as reasonably possible. Second, with respect to fire losses, potential claimants must give notice to all interested parties as quickly as possible, so that they can have an opportunity to inspect the fire scene themselves. These are the two best approaches to prevent fire scene spoliation.

However, the ramifications are even greater. While the case law recognizes that there is no duty to save a fire scene indefinitely, the parties must act reasonably, and in accordance with their own subject experience for saving evidence. In the instance of insurance carriers, the case law is uniform that they are deemed to have sophisticated knowledge concerning the need to preserve evidence. Insurers are viewed as professional litigants, and the courts have held them to the highest of standards when it comes to saving evidence from a fire loss.

Likewise, sophisticated litigants who defend themselves in fire cases cannot act like ostriches and avoid inspecting a fire scene of which they are alleged to be responsible. A justice of the Supreme Court of Alabama, dissenting in Alfa Mutual Insurance Co. v. Ray’s Refrigeration, 682 So. 2d 452, 453 (Ala. 1996), made clear his attitude toward parties who push their heads into the sand and ignore the duty to investigate:

I would not allow these plaintiffs’ claim to be dismissed as a sanction for spoliation, because the defendants knew that litigation was imminent and the fire scene would eventually be cleaned up, but took no action to investigate. I would not reward the defendants for their ostrichism.

The defense also has a duty to investigate once it is provided with notice of a fire loss. This increases costs for parties who are called upon to perform fire investigations to defend themselves or forever be barred from claiming prejudice due to the loss of evidence from a fire scene.

Costs may also be incurred for the time and related expenses associated with giving notice and waiting for the defense’s investigation to take place. Often, after a major fire loss, efforts are made to notify parties and allow them a reasonable opportunity to investigate. This delays the mitigation of the loss, which could in turn increase the costs to repair a structure or to obtain replacement property. It could even increase the loss of business profits to a damaged party. Decisions concerning adjustment and loss mitigation now need to be weighed in terms of whether the investigatory actions of the parties involved were reasonable at the time the fire loss occurred.

These considerations also have ramifications for the procedural prosecution of the cases themselves. In some instances, mini-trials have been held prior to the main trial to determine which spoliation sanction, if any, should be imposed. See, e.g., Hoffman v. Ford Motor Co., 587 N.W.2d 66 (Minn. App. 1998). One can foresee the day when experts in fire litigation might be called upon to offer opinions at an extensive pre-trial hearing that examines whether the investigation efforts taken by a fire investigator or a litigant were reasonable in terms of the circumstances surrounding the loss, and if not, what sanction should be imposed. This could have a dramatic effect on all fire litigation.


Fire subrogation litigation is now more complicated due to the increase in allegations of fire scene spoliation. Defense lawyers participating in such litigation need to be fully aware of the implications of their actions regarding evidence preservation, so that they take proper steps to protect themselves and their clients from unwarranted exposure to spoliation sanctions.