Father of Children Lost in Connecticut Fire Accuses City of Destroying Evidence
Today’s Burning Question: We are at the scene of a fatal fire that claimed the lives of five people. The building is unsafe and needs to be knocked down. Can we order the building to be demolished?
Answer: The authority to demolish fire damaged property is usually determined quite simply by researching state and local law. We now have to add a relatively new consideration: spoliation, and our potential liability for the destruction of evidence relevant to a possible legal proceeding.
In Stamford, Connecticut, the father of three young girls killed in a house fire on Christmas morning, 2011, announced plans to sue city officials for the intentional destruction of evidence when they ordered the demolition of the home on December 26, 2011.
Last Friday, attorney Richard Emery filed a notice of intent to sue Stamford and city officials on behalf of Matthew Badger. Badger’s three daughters died in a fire at the home of their grandparents on Shippan Avenue. The grandparents died as well.
The cause of the fired was rule accidental, and attributed to the careless disposal of fireplace ashes. Besides the spoliation claim, Badger accuses the city of negligence for failing to properly inspect the home, failing to ensure there were proper smoke detectors, and allowing the building (which he characterized as a “plain fire hazard”) to be occupied. The 3,350 square foot home was being renovated at the time of the fire.
Stamford’s Director of Legal Affairs, attorney Joseph Capalbo, was quoted by CTPost.com as saying “While we believe the allegations against the city and its employees are baseless and without merit, we are mindful of the tragic loss suffered by the Badger family and continue to offer our deepest heartfelt sympathies.”
I’m always suspicious when the AHJ orders a building demolished TWENTY-FOUR HOURS after a fire. With multiple fatalities and significant damage to the structure (enough to necessitate it being razed)… I don’t see how there was sufficient time to conduct a proper investigation.
The article referenced in the posting does not give any specifics to the processed used to demolish the building. In the cases that I was involved with where buildings were demolished within days of a drastic fire, we tried to make sure evidence was preserved if at all recoverable and that those with a legitimate interest had input before we just ripped something down. As an example, in many cases investigators for the insurer of a property would let us know specific areas or equipment they would like to examine (i.e. a sprinkler valve, an egress door, etc.), so we make an extra effort not to destroy that so that after our investigation is complete, the insurer’s investigator can examine the evidence. In any case, whenever possible the City would order the building owner to demolish the building once the investigation was complete. That way the building owner/insurance company has to pay for the demolition and they have a chance to preserve whatever they deem necessary for further investigation regarding possible litigation.
Thanks Chief
The spoliation concern is a relatively new issue for us to consider. It’s not that we never considered it – it is just that lawyers are raising it more and more frequently – to the point where we have to consider two separate issues thoroughly before allowing the demolition a structure.
(1) Do we have the legal authority to demolish the structure, giving due process to anyone with an ownership interest and complying with state and local law.
(2) Is there evidence that could be relevant to any legal proceeding (criminal or civil) that could be lost if we demolish the structure.
In answering the second question we cannot be SOLELY focused on OUR evidentiary needs. Just because we have completed our investigation does not necessarily satisfy our responsibility to preserve evidence.
For example – we may conclude that a fire was caused by a defective light fixture. However, within that fixture there may be component parts that are manufactured by a dozen or more suppliers. If the building is destroyed and the fixture is lost, then a party seeking to sue the responsible party may not be able to identify who manufactured the fixture. That is problem number 1.
Problem number 2 can arise when the manufacturer can be identified but we have not preserved the evidence, and it cannot be determined which of the subcomponents caused the fire. In that case the manufacturer cannot go back against the sub-component part manufacturer and is left holding the proverbial bag.
In either case, the fire department could be accused of spoliation.
It gets to be pretty complicated (bordering on impossible) to figure out who may have an evidentiary interest in a fire scene. Sometimes experts cannot even agree on where a fire started – let alone which particular device started it. How do we meet our obligation to preserve all possible causes… or all possible evidence? Notifying the insurance company and including them in the decisionmaking on demolition is a start – but the concerns can go beyond that. What if the insurance company decides to sue the light fixture manufacturer on its subrogation claim? The insurer has had an opportunity to view the scene and investigate the cause… but the manufacturer only finds out days… weeks… perhaps months after the fire that it may be a party… They will not be happy and may raise spoliation concerns in a suit against the FD.
Since most fires are small loss cases… these issues are not recognized as a big deal. Because its not worth either side hiring experts and attorneys to fight over the FD never realizes there is a problem. The issues are most likely to surface in large loss cases or where (as in Stamford) there are fatalities. In those cases “We have always done it this way” is not going to fly as an excuse.