I would like to say I believe the problem is due to the misuse of terms. The standard of care does not relate to a document. The standard of care is the care one person owes another. A benchmark is what is used to measure the level of care that was provided.

I took time to read the cases listed. What I found was that NFPA 921 was being used by the courts as a benchmark when assessing the care given by the investigator.

In KUMHO TIRE CO. V. CARMICHAEL, NFPA 921 is not mentioned. This case addresses an accepted methodology used by the expert to reach a conclusion.

In IND. INS. CO. VS GE, Northern District of Ohio 2004 US Dist., the court in its discussion stated that NFPA-921 is a recognized guide for assessing the reliability of expert testimony in fire investigations. The court used the document to evaluate the investigation conducted by the expert. The court never used the term standard of care when addressing NFPA 921. What they did do is use 921 as a benchmark.

In TNT RD. CO. VS STERLING TRUCK CORP., I cannot find where NFPA 921 is mentioned.

In TUNNEL VS FORD MOTOR CO., Western District of Virginia used sections of NFPA 921 in their discussion they used 921 as a benchmark. The court does not say NFPA 921 is the standard of care fore fire investigators.

In WORKMAN VS ELECTROLUX CORP., District of Kansas, 2005 US Dist., the investigator said he followed NFPA 921. Here again the court used 921 as the benchmark based on the fact the person claimed he used it for that purpose. The court stated in their discussion of the case, NFPA 921, which represents the national standard with regard to appropriate methodology for investigation by fire science experts. Notice they did not declare the entire document as the standard of care but addressed the methodology as being the national standard. I have no argument with the methodology. In their ruling the court did not say NFPA 921 was the standard of care, if fact NFPA 921 was not mentioned in their conclusion.

ABON, LTD. VS. TRANSCONTINENTAL INS. CO., Ohio Court of Appeals 2005 in the discussion of the case, the court stated The National Fire Protection Association 921 Guide for Fire and Explosion Investigations ("NFPA 921") is a peer reviewed and generally accepted standard in the fire investigation community. The court also said in this case, “The courts have also found deductive reasoning and the process of elimination to be credible, scientific evidence.” Nowhere in their judgement did they mention NFPA 921 as being the standard of care a fire investigator must follow. Here the court used the document as a benchmark to evaluate the investigator’s method of conducting an investigation.


In MCCOY VS WHIRLPOOL CORP., District of Kansas 2003 US Dist., the parties have agreed that the National Fire Protection Association ("NFPA") has published NFPA 921, its "Guide for Fire and Explosion Investigations" — which represents the national standard with regard to appropriate methodology for investigation by fire science experts. The court never stated 921 was the standard of care.

In UTAH VS. TROY LYNN SCHULTZ 2002, the case addressed the proper use of a K-9 in fire investigations. The court stated, “Similarly, we conclude that the use of canines to help detect the presence of accelerants as an investigative tool is generally accepted within the fire investigation community.   See Fitts v. State, 982 S.W.2d 175, 183 (Tex.App.1998) (recognizing that training and technique for canine accelerant detection is accepted by arson investigation community);  see also NFPA 921:  Guide for Fire and Explosion Investigations (2001);  Jonas & Bueker, Accelerant Detection Canines:  Uses and Misuses (1999), available at http:// www.nciaai.com/Sym.htm. Therefore, expert testimony concerning the use of canines as a fire investigation technique to determine whether an accelerant may be present is merely subject to rule 702, rather than the three-part Rimmasch test.” The section of the document was used as a benchmark. The court stated the expert could rely on the information contained in 921 as to the use of a K-9 when conducting an investigation.

In SNODGRASS V FORD MOTOR CO., District of New Jersey, 2002 US Dist., the investigator used information from another expert. This other expert’s information is references as an authoritative source in 921. NFPA 921 being a standard of care was never mentioned.

In ROYAL INSURANCE CO. OF AMERICA VS JOSEPH DANIEL CONSTRUCTION, Southern District of New York the court was assessing the reliability of the expert’s testimony. The expert stated his testimony was based on his investigation of the cause of the fire, an investigation which was conducted in accordance with the professional standards and scientific methodology used by experts in fire and explosion investigations, and set forth in the National Fire Protection Association, Inc.'s "Guide for Fire and Explosion Investigations" ("NFPA 921"). The court in this case never concluded that 921 was a standard of care.

I could not find information on CHESTER VALLEY COACH WORKS VS FISHER-PRICE, INC., Eastern District of Pennsylvania 2001 US Dist.

In TRAVELERS PROPERTY AND CASUALTY CORP. VS GE DISTRICT OF CONNECTICUT the court was again addressing methodology. Nothing was stated by the court to indicate the court concluded that 921 was a standard of care.

A recent ruling by the Eighth Circuit Court of Appeals says that the National Fire Protection Association's (NFPA) Guide 921 is a reliable investigation method of a professional organization, but it's not the only reliable way to examine a fire. Expert testimony based on other methods is still acceptable.

The opinion of the court, explained that the fire expert's testimony could only be excluded on NFPA 921 grounds if he purported to follow NFPA 921 and did not reliably apply it to the remains of the fire at the plaintiffs' home, which was not the case.

The Court of Appeals understood such evidence to mean only that NFPA 921 is a respected investigative method, not that it is a method an investigator is required to deploy in every case, including this one.
In another case, the expert said he did not follow NFPA 921. He explained how his investigation was conducted. In sum, this Court finds that the expert testimony at issue satisfies the standards of Daubert and Rule 702. As a result, the Court will not exclude the investigator’s testimony regarding the origin and cause of the fire at restaurant on March 19, 2012, based on him not following NFPA 921.

Jim Mazerat
Forensic Investigations Group