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Lynch, Peter. After the Fire's Out: Spoliation of Evidence and the Line Firefighter. Fire Engineering. Vol. 151. No. 1 (January 1998). p 79-80.

Abstract: This article focuses on the civil case law history behind the law of spoliation. Spoliation is the destruction of or failure to save evidence that could have been used in future litigation. The author asserts that while firefighters are usually immune from spoliation claims, and are also protected by civil immunity, there are situations in which firefighters are subject to civil tort liability. Numerous case references are included, with frequent reference to California protocol, that state being the first jurisdiction to officially recognize the tort of spoliation of evidence.

In California, there are recognized elements of negligent spoliation of evidence. They are: If a plaintiff has a potential defense regarding a claim for damages; if the defendant is aware of the claim; if the defendant is aware of or should have been aware of evidence regarding the claim; if the defendant knows or should have known that failure to use care with the evidence might result in its loss or damage; if the defendant fails to act with reasonable care; if that failure causes destruction, damage, loss or concealment of the evidence; if the plaintiff's opportunity to prove the claim is damaged.

Distinctions are made between firefighters acting within their duties, and those acting beyond the scope of their responsibilities, perhaps after the fire has been extinguished. In the latter situation, a firefighter might be liable for negligent or intentional spoliation of evidence. Penalties have included monetary sanctions and further civil action. In California, the statue of limitations for spoliation claims is two years.

The author offers a number of suggestions for those firefighters working on the scene after suppression and overhaul have been completed. Physical remains of an item suspected of causing an arson fire, including matches and evidence of accelerant should be preserved. Take care to retain all the pieces of damaged evidence. Photograph physical evidence three times--before it is moved, while it is being moved, and after its removal. Create a detailed log and record the date, time and direction of each photograph as well as photographerís name. Photograph and document other objects on the scene that also might have been responsible for the fire. They may be needed later to corroborate the investigator's conclusions. Look for identical items to the device suspected of causing the fire. The comparisons between the suspect device and the others will be useful in the investigation. Finally, alert all known parties as to what evidence has been taken, what tests will be performed, and when they can view the evidence themselves. Such documentation will help prevent claims of spoliation of evidence later.

For more information, contact:
Fire Engineering
Park 80 West, Plaza 2, 7th Floor
Saddle Brook, NJ 07663,
Phone: (201) 845-0800
Web Site: www.fire-eng.com

 
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