Court: Evidence Was Not “Spoliated” By Removing It From Fire Scene

A fire substantially destroyed a custom-built log home.  The homeowner’s fire investigator determined the fire began in the area where two electrical panel boxes had been mounted.  Presence of “blow holes” in one of the panel boxes indicated fire started due to electrical arcing.  The fire investigator fully photographed and documented the scene, then took the panel boxes to a secure facility for safekeeping.  The fire investigator left behind a yellow placard with the investigator’s name, address, and an “800” number and a direction that no one was to remove anything from the scene.

The electrician who had installed the panel boxes a few months prior to the fire was put on notice and his insurance company subsequently sent a fire investigator to the scene.  This investigator noted that the panel boxes had been moved prior to his investigation.  A joint evidence inspection (attended by electrical experts on behalf of the homeowners and the electrician) of the panel boxes occurred at a nearby laboratory at a later date convenient to all the parties.

Suit was commenced against the electrician wherein it was alleged the panel box had been installed too close to copper piping in violation of the National Electric Code, and that the fire was a direct result of water infiltrating the box.  Years later, on the eve of trial, the electrician moved to dismiss the case based on “spoliation” of evidence.  The electrician argued (among other things) that by removing the panel boxes prior to the adverse investigator’s inspection, the scene had been irreparably altered and defendant electrician had been denied a fair opportunity to defend himself.  The court disagreed, and denied the motion.  The court (in an unpublished opinion) noted that the claims service handling the matter for the electrician had been notified prior to defendant’s scene investigation that the panel boxes had been moved and the claims service had been given the telephone number for the homeowner’s fire investigator.  At no time was a request made to have the panel boxes brought back to the burned house so a reconstruction could be done.  The court found probative the affidavit of the homeowner’s investigator who indicated he took the panel boxes for safekeeping to avoid them being discarded or exposed to the elements.  Spoliation is the alteration, loss or destruction of evidence; in this case, the evidence was not lost, it was preserved.

Bottom Line:  While the Court in this case found no spoliation, it is always good practice, wherever possible, for a fire investigator to leave a fire scene with evidence in place pending notification to third parties to give them a fair opportunity to view the scene undisturbed.

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