Fire casualties: is a smoke detector to blame?

Attorneys representing fire victims should be mindful that most residential smoke detectors are slow to warn of smoldering fires.

Smoke detectors are credited with a significant reduction in fire deaths and injuries. However, most consumers and lawyers overestimate the ability of ionization smoke detectors to timely warn of common residential fires.

Ionization and photoelectric smoke detectors are available for residential use. They might be battery powered or hard wired, with or without a backup battery. Eighty percent of residential detectors are ionization detectors. They emit a beam of ions in a chamber. When smoke enters the chamber, the smoke particles obstruct the flow of ions; current flow is reduced; and, depending on sensitivity settings, the alarm is activated.

Photoelectric detectors emit a beam of light in a chamber. When smoke particles enter the chamber and interfere with and scatter the beam of light to receptors in the chamber, the alarm is activated.

Combination smoke detectors include both ionization and photoelectric sensors in a single unit, and these detectors should not be confused with a carbon monoxide-ionization smoke detector.

Because of their inherent operating differences, detectors respond differently to different types of smoke. Generally, ionization detectors will respond more quickly to the presence of numerous small particles, such as those produced by a flaming or fast fire. By contrast, photoelectric detectors usually respond more quickly to larger particles, such as those produced by a smoldering or slower growth fire. Other factors that affect a detector's response include the distance the particulate matter travels, particle agglomeration, chamber design, color of smoke, and the smoke detector's sensitivity setting.

The differences between ionization and photoelectric detectors are well documented and known to the industry.(1)

Manufacturers producing only photoelectric detectors were the first to advise prospective buyers that photoelectric detectors can give an early warning of slow smoldering fires. The interval between the activation of a photoelectric detector and the activation of an ionization detector--assuming it eventually does alarm--might range from a few minutes to more than an hour. If the materials consumed early in your clients' fire produce particles that an ionization detector is slow to detect, the delayed warning characteristic of an ionization detector may be the basis of the lawsuit. The suit can allege that this detector is unreasonably dangerous to someone who is unaware of this characteristic and failed to protect themselves with a smoke detector that does not have this defect.

Initial conference with clients

The responding fire department generally investigates the cause and origin of the fire. In a smaller community, the state fire marshal may conduct the investigation of a fatal fire. The investigator will probably interview your clients and ask whether a smoke detector was present and, if so, whether it alarmed.

If a rental unit had no detector or if there was an insufficient number of properly located smoke detectors, consider filing a premises liability suit against the property owner. If the investigator's report describes a failure to operate or a delay, this should alert you to the possibility of suit against the smoke detector manufacturer.

If anyone reports hearing a smoke detector during or even after the fire, the investigator will probably conclude that the detector functioned properly. Do not automatically accept this conclusion as correct. Smoke detectors are perceived as effective safety devices in many cases, and firefighters are reluctant to criticize them even if they have personally experienced failures or delays with detectors. The industry extensively lobbies fire departments and fire organizations.

The investigator probably told your clients his or her findings about the cause and origin of the fire. You will obviously evaluate the possibility of premises or products liability claims concerning the source of ignition and contributing factors to your clients' injuries. Do not overlook smoke detector performance issues.

When you meet with clients, be certain to ask if and when the smoke detector alerted them to the fire and what they did to rescue themselves and others. Determine the make, model, and type of each detector. Ask who installed each detector and when it was installed. Also find out whether the detectors were tested and if batteries were replaced. You should also determine whether the detector had a history of false alarms or failure to alarm. If the fire occurred in a multi-dwelling unit, a detector in another unit may have sounded.

Your clients will often be parents of young children who could not escape the fire or be rescued. If so, decide whether there is a potential claim that your clients are responsible for their children's injuries. Assess whether there are parental responsibility or immunity issues that will affect the case.

Determine the cause of any injuries. Typically burns from direct contact with flames are not the cause of injury or death. Instead, the combination of carbon monoxide impairment and inability to find escape routes because of smoke is the true cause of injury. The failure of a smoke detector to timely alarm in a smoldering fire creates this situation.

Interview first responders 

The first person to respond might be your client, a neighbor, a firefighter, or a police officer. Talk to this person promptly. Obtain any reports or notes. Many firefighters keep a personal log that is not part of the public record. Prepare a timeline to help organize the information.

Because a fire is stressful, there are likely to be conflicts in the factual reports of witnesses. Ask the witness to describe the setting before the fire and the changes that occurred during the fire. Some questions to ask are:

* Where were you when you became aware of the fire?

* Did you first learn of the fire by smelling smoke, seeing flickering lights, or hearing the smoke detector or some other sound?

* When did you learn of the fire and what did you do when you learned this?

* Was your escape or rescue hindered and, if so, how?

* What were the smoke and heat conditions at the time?

* Where did the smoke travel?

* What was its color and density?

* How does the air normally circulate in the structure?

* Was the furnace blower or other fan operating?

* Which smoke detectors were exposed to smoke, where were they located, and when did they alarm, if at all?

* What were the conditions when other persons arrived and when they left the scene?

* What were the conditions when you arrived and when you left the scene?

A witness may be uncertain about a critical issue--for example, whether a detector was alarming when he or she first learned of the fire or whether it was not sounding and later he or she heard it start to alarm.

Defense investigators will approach the firefighters and talk with them extensively about whether and when the alarm sounded as well as fire rescue and suppression efforts. The firefighters may accept the suggestion that they did not hear the detector because they were focused on saving lives and fighting the fire, and other noises at the scene prevented them from hearing the detector.

You and the cause-and-origin investigator should meet with the responding firefighters early in the investigation to learn their individual recollections. Don't rely on the official report. If they did not hear the alarm, ask whether they heard other sounds--the fire, other firefighters, radios, the sirens from approaching fire engines or ambulances. If they heard these sounds, isn't it likely they would have noticed the loud, piercing smoke detector if it had been sounding?

Spoliation 

Fire investigation is a complex science. Fire necessarily damages the scene and creates and changes evidence. If the fire has flashed over, every combustible object in the room has ignited, making it difficult to gather and evaluate evidence. The structure may have collapsed and the original ignition point might now be covered with tons of rubble. Rescue, fire suppression, overhaul, and previous investigative efforts probably altered the scene before you became involved in the case.

The fire scene might be simple or complex. The local fire investigator probably collected those articles he or she thought might be relevant, but investigators are limited by time, money, space, and possibly knowledge. They might not even collect the smoke detectors.

During your first conference with the fire investigator, view the evidence collected and find out the investigator's policy on evidence storage and access. Ask that you be notified if anyone else wants to view the evidence. Be certain that no one can remove the evidence without notice to all parties. Also be sure that no destructive testing occurs without the consent of all parties.

If the fire department still controls the scene, determine what procedures it uses to limit or document access to the scene and fire artifact removal. Unmarked evidence in a community evidence locker and unlimited and undocumented access to the fire scene will cause you problems later in the litigation.

It may be necessary to collect additional evidence and take control of the scene. If so, notify all potential parties, including the premises owner, the smoke detector manufacturer, the owner or installer of products at or near the fire's origin, or those whose by-products of combustion contributed to the injuries so that they can be present and agree to protocols for evidence collection, safekeeping, and investigation. Carefully photograph and record the evidence collected.

Selection of experts

Ideally, the public fire investigator is well qualified to serve as a plaintiff's expert about cause and origin issues if you agree with his or her conclusions about the cause and origin of the fire and the performance of the smoke detector. However, it is unlikely the investigator will be familiar enough with smoke detector performance issues to serve as an expert in this regard. You may have to educate him or her about the differences in smoke detectors. Even if the public fire official is on your side, you will have to support the official's testimony with testimony of other experts.

Determining the fire's origin does not necessarily answer why or how the fire started, which materials were consumed, or when they were consumed. Explaining the mechanism of ignition and course of the fire may require additional experts.

The fire department is interested in determining how and why a fire started. Generally, the fire department is not interested in determining--nor does it usually have the knowledge or resources to determine--why or how the detector failed, which items burned, when they burned, or the by-products the fire produced. You will need qualified experts to answer these questions. Hopefully, the investigation of smoke detector performance will overlap with the investigation of a products or premises suit.

You will need an expert familiar with the history of smoke detectors, the studies concerning smoke detectors, and Underwriters Laboratory Standard 217, which prescribes the tests single-station smoke detectors must meet to display the Underwriters Laboratory seal. All your experts and evidence must prove that a timely warning from a properly designed and functioning photoelectric or combination detector would have prevented or limited your clients' injuries.

Proximate cause 

As you investigate and prepare your case, remember that you must prove the delayed alarm of an ionization detector caused your clients' injuries. In many cases, the connection between the defect and the injury is almost taken for granted by the attorney. Do not underestimate the difficulty of proving causation.

As a practical matter it will be difficult to prove specific defects in a detector that has been involved in a fire. It is generally difficult to determine whether a defect existed before the fire or is a result of the fire. Removing the unit from the ceiling or pushing a test button might complete an electrical circuit that did not properly function during the fire. Heat from the fire causes components to flex and change and might cause a horn that failed to sound audibly early in the fire to sound properly late in the fire.

You will not win merely by proving that every ionization detector is defective and unreasonably dangerous. In addition, you must prove that the items that burned early in the fire produced the type of smoke that an ionization detector is slow to detect. Further, you must establish a properly working photoelectric or combination detector would have given additional warning that would have changed the outcome.

The defense is likely to argue the fire was a fast-flaming fire that spread so quickly nothing could have changed the outcome. The industry takes the position that the delayed warning of an ionization detector is not harmful because a consumer has greater escape time when the fire is a smoldering one. This ignores that a smoldering fire can burst into a flaming fire at any time. It also ignores the smoke obscuration and carbon monoxide dangers presented by a smoldering fire even if the fire and heat produced are not severe. Survivability or tenability--the ability of an adult to enter or remain in an area with fire conditions such as smoke, heat, and carbon monoxide--do not only depend on heat and fire.

Strategic decisions

The possibility of a premises or products liability claim against the property owner or the party responsible for the ignition of the fire presents significant strategic choices for the attorney.(2) You must decide whether to bring one lawsuit against all potential defendants or pursue the products or premises claims and, after settlement, proceed against the smoke detector manufacturer. Consider the probable judgments and each potential defendant's ability to pay. Determine how you can best protect your clients. Develop a strategy concerning punitive damages.

The ideal case to present to a jury is a fire confined to a small area causing little property damage but causing death or serious injuries to someone who could not escape the slow-smoldering fire. Before settling any part of the claim, consider the effect and form of settlement and release or dismissal. Are there comparative fault, joint tortfeasor, or allocation of damages issues? Are there subrogation rights, setoffs, or credits?

Manufacturer's notice and knowledge of defect

Hundreds of consumers have contacted BRK Brands, Inc., the major manufacturer of ionization detectors, to complain that their smoke detector failed to respond to smoke.(3) In response, the company or consumer completed a form and the customer was asked to return the unit for testing. The company used to replace the smoke detector with its self-described "top of the line" combination detector until company officials decided that was a bad policy. The company now replaces the detector with the same model. BRK claims to inspect and test all returned detectors in a smoke box and has never found one to be defective. The company sends the consumer a form letter stating that the detector would have worked if the fire had been serious.(4)

There have been two verdicts against the leading manufacturer of ionization detectors. Use them as a road map for discovery and trial issues.

In Mercer v. Pittway Corp., a jury awarded a multimillion-dollar compensatory and punitive damages verdict in a case involving the death of a three-year-old boy and serious injuries to his eighteen-month-old brother.(5) The jury determined that the smoke detector manufacturer was responsible for 50 percent of the compensatory damages, and the manufacturer of a baby monitor--stipulated by the parties to be the cause of the fire--was responsible for the other 50 percent. Post-trial motions have been heard, and the jury's verdict for punitive damages has been affirmed in a post-trial ruling.

This case is pending on appeal. The company claimed it never lost a trial before Mercer.

In Gordon v. BRK Brands, Inc., a jury awarded substantial compensatory and punitive damages in a case involving two fatally injured children. The parties settled after the verdict for a confidential amount.(6)

Appellate decisions involving ionization detectors include:

* Butler v. Pittway Corp.(7) The Second Circuit reversed summary judgment in favor of defendant and allowed plaintiffs to pursue a strict liability theory of recovery. The court held the failure of a smoke detector to timely sound an alarm is a defect exposing plaintiffs to an unreasonably dangerous condition.

* Dillard v. Pittway Corp.(8) The Alabama Supreme Court reversed summary judgment in favor of defendants, finding it foreseeable that persons, including rescuers, could be injured by the delayed warning of a smoke detector.

* Laaperi v. Sears Roebuck & Co.(9) The First Circuit affirmed a jury verdict in favor of the plaintiffs, holding the inability of an AC-powered detector to sound as the result of a short circuit and fire in the circuit supplying the detector is not obvious as a matter of law. The jury could find the defendant had a duty to warn.

Obviously, the smoke detector is not responsible for the fire. However, it may be responsible for your clients' injuries if it did not sound in a timely manner and this delay proximately caused or increased your clients' injuries.

If your clients have suffered injuries as a result of a fire, you should carefully investigate all possible theories of recovery. Do not overlook the smoke detector.

Notes

(1.) See, e.g., John Brennan et al., Residential Smoke Alarm Report, INT'L FIRE CHIEF, Sept. 1980; R.W. Bukowski et al., Detector Sensitivity and Siting Requirements for Dwellings, REP. OF THE INDIANA DUNES TESTS, PHASES I AND II, 1975-1976; Oystein Meland & Lars Einar Lonvik, Detection of Smoke: Full-scale Tests with Flaming and Smoldering Fires, FIRE SAFETY SCIENCE-PROCEEDINGS OF THE THIRD INT'L SYMPOSIUM, July 1991.

(2.) If the detector does not have a backup battery, electrical power failure before or during the fire or fire damage to the circuit supplying the detector may be a cause of action.

(3.) The BRK division of Pittway manufactured these detectors in the 1970s and 1980s. That division was sold in the early 1990s, and a new company, BRK Brands, Inc., manufactured the detectors. A publicly traded entity known as First Alert was the holding company. The company was purchased by Sunbeam in 1998. This company's products are manufactured under several different names, including BRK, First Alert, Wake & Warn, and Family Guard.

(4.) Testimony of BRK Brands, Inc., employee Beth Weber in Mercer v. Pittway Corp., No. 89732 (Iowa, Scott County Dist. Ct. Feb. 11, 1998).

(5.) No. 89732 (Iowa, Scott County Dist. Ct. Feb. 11,1998).

(6.) No. 992-0771 (Mo., St. Louis Cir. Ct. July 1, 1999).

(7.) 770 F.2d 7 (2d Cir. 1985).

(8.) 719 So. 2d 188 (Ala. 1998).

(9.) 787 F.2d 726 (1st Cir. 1986).

John O. Moeller is a sole practitioner in Davenport, Iowa.