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McKenzie, Michael A. Liability Exposure for Fire Investigators--Is it Pandora's Box? Legal Notes. National Fire & Arson Report. Vol 13, No. 1, p 1+.

Abstract: Just like doctors and lawyers, fire investigators are becoming vulnerable to our increasingly litigious society. The days of immunity from suit are over. It is not unreasonable to think that an insurance carrier, forced to pay a claim for a case lost due to an investigator's negligence, might then sue the investigator for damages. Such situations might occur with increasing regularity as investigators lacking the necessary skills and training find themselves performing inadequate jobs on behalf of their clients.

When evidence disappears or is altered, either intentionally or negligently, the tort of spoliation is invoked, spoliation being defined as "the destruction or the significant and meaningful alteration of a document or instrument." Plaintiffs may contest that their case is damaged, or even precluded from any course of action. Damages may be sought against the party responsible for the evidence and its preservation. These damages can be sought not only from property owners, but also from third parties who may be impacted by any work done at the scene. Such actions have wide-ranging ramifications for anyone who might sift through, examine, handle, discard or retain evidence. Discussions have ensued regarding what to take, how much to take, whom to notify and when.

Beyond spoliation, however, are other issues to consider; libel, slander, trespass, negligent investigation and intentional infliction of emotional distress are all areas of potential liability for investigators. Even the issue of witness immunity is being debated.

Included in the notes of this article is a list of jurisdictions who have recognized the tort of spoliation.

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