Two Georgia parents, Brenda Davis and Roosevelt Alexander, agreed to watch a neighbor's child, Nyrica Knox. However, Davis went on an errand and Alexander went to work, leaving their own children and Knox in the care of a 13-year-old.

While the parents were gone, a fire was started in the bedroom next to the kitchen by a child playing with a lighter. Knox, who had last been seen asleep on the couch in the living room, was found by firefighters behind the door on the bathroom floor. She was taken to a local hospital, where she died of smoke inhalation. The other children escaped unharmed from the burning house.

The fire investigator speculated that children become so frightened during fires that they hide in confined spaces rather than exit the fire building. The fire investigator also testified that he didn't believe there was a smoke detector in the house as he could not locate any signs of one.

As a result of Knox's death, the child's estate brought a lawsuit against Davis and Alexander, Wilkerson v. Alexander, 208 Ga. App. 83, 429 S.E.2d 685 (1993). The appellate court held that the evidence did not prove that the absence of a smoke detector was the proximate cause of the child's death.

In New York, a fire originating in an apartment bedroom resulted in the tenant's death. The fire was most likely caused by the careless use of smoking materials, according to the fire department's official investigative report, which also noted that smoke detectors were missing throughout the building. However, several smoke detectors did activate during the fire. The family of the deceased sued the landlord based on administrative code provisions that require landlords to install smoke detectors, claiming an absence of this warning device in the burned apartment caused the tenant's death.

In Acevedo v. Audubon Management Inc., 28 A.D.2d 91, 721 N.Y.S.2d 332, 2001 N.Y. Slip Op. 01620 (2001), the court held that the plaintiffs were required to produce evidence in admissible form on the subject of causation to raise a triable issue of fact. The court noted that the evidence established nothing more than the decedent's demise as a result of a fire in the apartment.

In Tennessee, cousins Steve Dowdy, 10 months, and Augusta Dowdy, 3, perished in a duplex fire that the fire inspector determined to have been caused by an unattended burning candle. The mothers of the two boys were found to have been negligent by leaving the candle burning after going to bed.

During the course of the investigation, the fire investigator also searched for a smoke detector, but could find none. In checking the unburned side of the duplex, the investigator also could not find any evidence of installed smoke detectors. The owner of the duplex, however, stated he had installed smoke detectors in both duplexes prior to the Dowdy family moving into the home.

In Dowdy v. Wilson, 1998 WL 886610 (Tenn. Ct. App.), the two mothers, as parents and next of kin, sued the property owners for the wrongful death of the children, alleging that the failure to properly install smoke detectors in the duplex was the cause of the death of the two minor children. The court found that the omission of the landlord in failing to equip the home with a smoke detector clearly fit into the definition of proximate cause. Specifically, the court held that the omission to provide smoke detectors resulted in the failure to prevent the deaths of the two children.

In Wisconsin, Amanda McNamara was the mother of two young children, Jessica and Jacob. One afternoon, Jessica informed Amanda that “the bathroom was hot.” Almost immediately, Amanda saw smoke coming from the kitchen area. Running to the kitchen, she saw that the adjacent bathroom was on fire. Amanda instructed Jessica to go outside, and attempted to remove her son Jacob from his high chair. After she succeeded in removing Jacob from the house, she was unable to locate Jessica. Jessica died in the fire.

A subsequent investigation established that a smoke detector was installed in the kitchen area just outside of the bathroom door. The night before the fire, Amanda discovered that the smoke detector battery was dead. She took the smoke detector down and removed the dead battery. She did not replace the battery or inform her landlord of that fact.

The landlord was sued for failure to install smoke alarms and for permitting an unlicensed contractor to do electrical work that resulted in the fire causing the child's death. McNamara v. Balsiger, 260 Wis.2d 602, 658 N.W.2d 88, 2003 WL 176357 (Wis. Appeal, 2003) The estate also claimed that the smoke detector should have been installed with AC primary power and standby battery. The court ruled that the cause of the fire must be established by expert testimony; without that testimony, a jury could not be permitted to speculate as to the cause of the fire.

In each of these cases, injured parties brought legal actions based on the lack of working smoke detectors. In each case, the party bringing the lawsuit — the plaintiff — had the burden of proof of establishing four elements to succeed at trial.

1. Duty

   In many instances, there are affirmative legal duties or requirements to act in a particular manner or not cause harm to others. For example, automobile drivers have a duty to drive with reasonable care and to stop at traffic control devices. Many states impose a legal duty on landlords to install smoke detectors. In the cases cited above, the courts found a duty on the part of the defendant, and thus the element of legal duty was not an issue.

2. Negligence

   A plaintiff suing must next prove negligence, which is a breach in the standard of care to the person owed the duty. In the landlord/tenant cases, the alleged breach usually related to the failure to provide a working smoke detector. Again, in the cases referenced above, the courts could presume negligence on the part of the defendant.

3. Damages

   This was the easiest element to prove in the cases cited, because in each case a person was injured or killed, or property was significantly damaged. From my own experience with fire-related litigation, families who have suffered the death of a loved one or who have suffered significant property damage often turn to an attorney for advice, and it isn't unusual for those attorneys to focus on landlords, product manufacturers or public entities, including water and fire departments, as the “cause” of the loss.

4. Proximate causation

   However, it was the fourth and last element that the courts addressed in each of the cases. “Proximate causation,” as defined by law, is the act or omission that immediately causes or fails to prevent the plaintiff's injury; an act or omission occurring or concurring with another that, if it had not happened, the injury would not have been inflicted. In other words, in the cases above, did the failure to provide a smoke detector cause the death or injury suffered or claimed by the plaintiffs?

It isn't unusual for fire officials to be questioned regarding the existence of a smoke detector after a fatal fire. Likewise, the press often questions firefighters regarding the number of fire engines and firefighters responding to a blaze, and the adequacy and availability of water, when large fires occur. It's extremely easy for fire officials to find fault with the absence of a detector, especially where the intention is to educate the public.

For example, a Maryland news reporter stated that the “fatality in this fire could have been prevented if there had been working smoke detectors in the residence.” It was noted that in this same fire, an elderly female resident escaped the fire uninjured. The deceased resident was found just inside the locked front door. In addition, firefighters were unable to place a 2-inch hand line in service due to “insufficient water supply.” Such comments may be relayed by on-scene firefighters who aren't official department spokespeople, but whose words can easily result in litigation when heard by harmed individuals.

In recent years, fire investigators have discussed the effect of the U.S. Supreme Court decisions in Daubert v. Merrill Dow Pharmaceuticals Inc. and Kumho Tire v. Carmichael on their ability to render opinions regarding a fire's cause at trial. These cases require fire investigators to successfully explain the methodology by which the fire's origin and cause are determined.

Subsequent to the Supreme Court decisions in Daubert and Kumho Tire, several senior career fire investigators, with significant experience, have been disqualified from testifying as to the cause of the fire. Each was disqualified because he failed to articulate his methodology and the scientific basis of his opinions in accordance with accepted texts, research papers, or NFPA standards.

In a Colorado case, Truck Ins. Exchange v. MagneTek Inc., 2004 U.S. App. LEXIS 3557, Feb. 25, 2005, 360 F.3d 1206 (10th Cir., Feb. 25, 2004), the testimony of a fire investigator was disallowed by the trial judge, who noted that “the phenomenon of long-term, low-temperature ignition of wood (pyrolysis) has neither been proven nor successfully disproven at this time.”

As a result of this decision, fire investigators are again re-examining their methodology prior to drawing conclusions regarding the origin and cause of a fire: “Experts must be prepared to prove the reliability of their investigative methodologies and theories to the satisfaction of the trial court. Experience alone is not sufficient. Even a theory which appears on the surface to be a reasonable and logical theory for the cause of the fire must be shown to be scientifically verifiable.”

So what do Daubert and Kumho Tire have to do with smoke detectors? Nothing if you, as the spokesperson for the fire department, do not attempt to draw a conclusion between the lack of a detector and the degree of damage to a building or a fireground death. (This same rule applies to statements relating to a lack of firefighting personnel.) But if you are willing to state an opinion regarding causation, you will be perceived as an “ace in the hole” by the plaintiff's attorney. You had better be prepared to support that opinion with scientific fact, because fire officials who are willing to render opinions regarding causation risk being cross-examined later.

An attorney may ask simple questions like:

• If a smoke detector had been present, can you state, with scientific certainty or probability, at what time the alarm should have sounded with respect to the time when the fire first ignited?

• If an alarm had sounded, what would have been the likely reaction of the occupant?

• Was the occupant physically or mentally impaired?

• Was the occupant under the influence of alcohol or drugs at the time of death?

I have seen cases where fire chiefs have stated to the press that if a smoke detector had been present in the building, the occupant would have survived. Imagine the chief's surprise when he found out later that the deceased had been shot to death before the fire, or had a blood alcohol content of .08%?

So don't smoke detectors save lives? Absolutely. I believe that every home or apartment should have smoke detectors located throughout the premises. Furthermore, I believe that fire departments should educate the public and media as to the value of working smoke detectors and water suppression systems. For example, recent NFPA statistics reveal that 70% of all fatal home fires occur in homes where there is an absence of working smoke alarms. However, caution must prevail when applying blanket conclusions to specific facts.

Ultimately, fire departments must adopt policies and procedures for providing information to the public when there are significant fire losses or fire-related deaths. There must be only one spokesperson for the fire department. When multiple people speak, inconsistencies between statements are more likely to occur.

Fire department policies must mandate the release of only known facts, until all facts of the fire loss have been obtained and reviewed. Opinions should be avoided, if possible. If an opinion regarding causation must be given, those opinions must be formulated and released only after the department has made a scientific inquiry and study in accordance with the dictates of Daubert and Kumho Tire. To do anything less is to place the reputation of the chief, spokesperson and department in the public eye and under the microscope of a well-prepared trial attorney. If you don't believe me, see you in court!

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David C. Comstock Jr., CFOD, is an attorney specializing in fire litigation and the defense of government entities, including fire departments. He's also chief of the Western Reserve Joint Fire District, Poland, Ohio.