Fire Investigation

• Author: Vladimir (Val) Chlistovsky
• Pages: 269-323

269

A. OVERVIEW

1) Introduction

According to the National Fire Protection Association’s Guide for Fire and

Explosion Investigations (NFPA1 921), f‌ire investigation is “[t]he process of

determining the origin, cause, and development of a f‌ire or explosion.”2

More broadly, f‌ire investigation involves collecting and analyzing informa-

tion from a f‌ire scene to determine where the f‌ire originated, what caused

it, and the circumstances that contributed to the ignition and subsequent

f‌ire spread.

In the public sector, results from f‌ire investigations are used to assess

and monitor trends as well as to inform the development of codes and

standards designed to reduce the incidence of f‌ires and related injuries.

In the private sector, insurance companies will rely on f‌ire investigators

to determine if the cause of a f‌ire falls within a covered category and, in

1 Online: www.nfpa.org. The National Fire Protection Association (NFPA) is a non-prof-

it organization established in 1896 and headquartered in Quincy, MA. Its mission is to

“reduce the worldwide burden of f‌ire and other hazards on the quality of life by provid-

ing and advocating for scientif‌ically based consensus codes and standards, research,

training and education.”

2 Technical Committee on Fire Investigations, NFPA 921: Guide for Fire and Explosion

Investigations, 2014 Edition (Quincy, MA: National Fire Protection Association, 2013) s.

3.3.67 [NFPA 921]. Unless stated otherwise, the facts, processes, and methodology for

f‌ire investigations discussed in this chapter apply equally to explosion investigations.

CHAPTER 10

Fire Investigation

Vladimir (Val) Chlistovsky

LEgAL ConTExT: CAiTLin PAkosH

270 6 Vladimir (Val) Chlistovsky

subrogated claims (suits to recover costs from a responsible third party),

to determine liability or negligence. Fire investigations are also conducted

to determine if a f‌ire was intentionally set, assisting the court in establish-

ing if the evidence is suf‌f‌icient to meet the required burden of proof.

Practitioners in the f‌ield of f‌ire investigation should have the skills,

experience, and knowledge of several scientif‌ic disciplines. In terms of

basic methodology, a f‌ire investigator must systematically gather factual

data relevant to the f‌ire scene to conduct an analysis that is detailed and

accurate. The data collection and analysis “. . . should be accomplished

objectively, truthfully, and without expectation bias, preconception, or

prejudice.”3 The purpose of a f‌ire investigation is typically to determine,

in order: (1) the f‌ire’s origin(s); and (2) the f‌ire’s cause. To create (i.e.,

to cause) a f‌ire, three key elements must be present: an ignition source,

fuel, and oxidant (e.g., air or oxygen).4 As part of the investigation, the f‌ire

investigator should consider the “circumstances, conditions, or agencies”

that could have brought together these basic elements.5

2) History

In North America (and many other parts of the world) the premier re-

source and guide for f‌ire investigators is NFPA 921, the Guide for Fire and

Explosion Investigations,6 which was f‌irst published in 1992. Prior to the

release of this guide, ad hoc and scientif‌ically untested approaches were

employed by f‌ire investigators to attempt to determine f‌ire causes.7 His-

torically, many f‌ire investigators relied on the process of elimination alone

to exclude all reasonable ignition sources for a f‌ire. If all reasonable igni-

tions sources were successfully excluded, the investigator would conclude

3 Ibid., s. 4.1.

4 Ibid., ss. 3.3.64 and 4.1.

5 Ibid., s. 4.1.

6 Ibid. at 1 & 2. For other reputable and well-accepted resource materials used by the

f‌ire investigation community, see John D. DeHann & David J. Icove, Kirk’s Fire Inves-

tigation, 7th ed. (Upper Saddle River, NJ: Pearson, 2012); Vytenis Babrauskas, Ignition

Handbook: Principles and Applications to Fire Safety Engineering, Fire Investigation, Risk

Management and Forensic Science (Issaquah, WA: Fire Science Publishers, 2003); John

J. Lentini, Scientif‌ic Protocols for Fire Investigation, 2d ed. (Boca Raton, FL: CRC Press,

2013) [Lentini, Scientif‌ic Protocols].

7 See Section B(1)(f), below in this chapter.

Fire Investigation 6 271

that the f‌ire must have been set intentionally. This method, referred to as

negative corpus,8 is a clear violation of the scientif‌ic method.9

In the words of internationally renowned f‌ire scientist John Lentini:

One thing that NFPA 921 has accomplished is to make it easier to distin-

guish between credible investigative results and those based on hunches

and feelings or discredited mythology. The guide provides the investi-

gator with the tools to do his or her job, but demands that conclusions

be justif‌ied with data, sound science, and clear reasoning. This is a good

result. Based on my 35 years of studying f‌ires, including more than 2,000

actual f‌ire scene inspections (about 800 of which I determined to be

arson) I learned two important things: most f‌ires are accidents, and

most arson f‌ires are obvious. Surely there are exceptions, but if a f‌ire

investigator over and over again reports an incendiary determination

that seems dif‌f‌icult to understand, chances are this investigator needs

to f‌ind another line of work in which the consequences of error are not

as serious.”10

After Daubert v. Merrell Dow Pharmaceuticals in 1993,11 U.S. courts began

referring to NFPA 921 as the “standard of care” for evaluating expert testi-

mony regarding f‌ire investigations. Canadian courts, guided by the expert

evidence admissibility criteria set out in R v. Mohan,12 have followed suit. If

successfully qualif‌ied as an expert witness, the f‌ire investigator will provide

the court with an opinion as to whether the f‌ire in issue should be classif‌ied

as accidental, natural, incendiary, or undetermined.13

NFPA 921, a consensus, peer-reviewed document, has evolved over the

years and continues to evolve with each new edition. For instance, earlier

versions of NFPA 921 allowed for the classif‌ication of a f‌ire as incendiary if

a precise point of origin was determined, even in the absence of evidence of

8 NFPA 921, above note 2, ss. 19.6.5–19.6.5.1.

9 Ibid., s. 4.3. “The Scientif‌ic Method is a principle of inquiry that forms a basis for legit-

imate scientif‌ic and engineering processes, including f‌ire investigation.” It is applied

by following a set of steps, as explained in Figure 4.3 of the NFPA 921, ibid.: “Recognize

the need (identify the problem), def‌ine the problem, collect data, analyze the data,

develop a hypothesis (inductive reasoning), test the hypothesis (deductive reasoning),

select f‌inal hypothesis.”

10 John J. Lentini, “The Evolution of Fire Investigation and Its Impact on Arson Cases”

(2012) 27 Criminal Justice 12 [Lentini, “Evolution of Fire”].

11 509 US 579 (1993).

12 [1994] 2 SCR 9 [Mohan]. See Chapter 3 and its discussion of R. v. J.-L.J., 2000 SCC 51.

13 NFPA 921, above note 2, s. 20.1.