Federal judge dismisses Pitkin County from CO deaths lawsuit | AspenTimes.com

Federal judge dismisses Pitkin County from CO deaths lawsuit

Rick Carroll
The Aspen Times
Aspen, CO Colorado

ASPEN – A federal judge on Wednesday dismissed Pitkin County from a negligence lawsuit filed by relatives of a Denver family of four who were killed by carbon-monoxide poisoning nearly three years ago.

Released from the lawsuit were the county’s community development department, the board of commissioners and building inspectors Brian Pawl and Erik Peltonen, who is retired.

Judge William J. Martinez also remanded the lawsuit, which had resided in the U.S. District Court since October 2010, back to Denver District Court, where it was originally filed in August 2010.

That’s because the seven remaining claims all pertain to state law; the eighth claim, against the county and the two employees, regarded the plaintiffs’ civil rights to due process, which fell under the federal court’s jurisdiction.

In essence, Martinez determined that the plaintiffs could not adequately demonstrate the county was culpable in the fatalities, which occurred on either Nov. 27 or Nov. 28, 2008, in the master bedroom of a home located at 10 Popcorn Lane, about four miles east of Aspen. The deceased family members – Caroline Lofgren, 42, her husband, Parker, 39, and their two children, Owen, 10, and Sophie, 8 – had won a stay at the home through an auction at their children’s school.

Pawl and Peltonen inspected the home in the summer of 2005 and signed off on its snowmelt system, which was operated by a Munchkin boiler that leaked the noxious gas. The county issued a certificate of occupancy to the home in June 2006. The home also did not have a carbon monoxide detector at the time of the deaths.

In his 19-page ruling, Martinez said the time between the county’s examination of the home and the fatalities was not “immediate” enough for the plaintiffs’ federal claim – “their Constitutional right of life guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution” – to survive.

Denver attorney William Hansen, who filed the suit, said Wednesday he was not sure whether the ruling will be appealed. He contended, however, that regardless of the time gap between the county’s work and the deaths, “the risk was there [at the house] from the get-go.”

Incidentally, Hansen arrived in Aspen on Wednesday to attend Thursday’s criminal proceedings regarding the carbon-monoxide poisoning deaths.

Peltonen, 69, a Basalt resident, and subcontractor Marlin Brown, of Glenwood Springs, are scheduled to stand separate jury trials in Pitkin County District Court. Brown’s trial is slated to begin Nov. 28; Peltonen’s is set to start in December. Both were indicted by a Pitkin County grand jury on four separate charges of criminally negligent homicide in July 2010.

“Our focus for now is primarily on the criminal case,” he said. “If there’s going to be any kind of accountability we’ll have to rely on the criminal proceedings.”

Plaintiff Hildy Feuerbach of Massachusetts, who is the sister of Caroline Lofgren and the representative of the deceased husband and wife’s estate, also was in Aspen for Thursday’s hearing. She said she realized the civil case against the county would be a difficult one to win.

“It was important to raise claims against the inspectors and the county because we thought the action was so egregious,” she said. “There was no carbon-monoxide detector there and there were a lot of things installed improperly. If the certificate of occupancy had not been issued, they would not have died. The certificate of occupancy allowed the house to be lived in.”

But Christopher Seldin, an attorney for Pitkin County, said the county’s motion to dismiss the case was proven correct by the judge’s ruling. That motion, filed in January, argued that “the Public Defendants did not install or manufacture the failed equipment. Someone else did. This is undisputed. All the Public Defendants did was regulate and inspect installations performed by others …”

The motion also noted that the county, had it “not enacted a building program, [the home at Popcorn Lane] would have been constructed without governmental oversight. And Plaintiffs clearly would clearly not be suing the Public Defendants.”

It continued: “The Public Defendants never knew the Lofgrens. They did not invite them to the [Popcorn Lane home]. They did not tell them it was safe. All the Public Defendants did … is fail to intervene and require others to correct defective work. They allegedly failed, in other words, to change the status quo created by others.”

While the county was dismissed from the lawsuit, other defendants remain. They are: Brown, Basalt-based Integrity Construction Management Group and its project manager, John Wheeler; Carbondale-based Eagle Air Systems Inc., Basalt-based Proguard Protection Services Inc., Heat Transfer Products Inc. of Massachusetts; and Jonathan Thomas and Black Diamond Development Corp., which owned the house at the time the family died in it.

Joining Hildy Feuerbach in the lawsuit are Massachusetts resident Dr. Frederick Feuerbach, the father of Caroline Lofgren; and Oregon resident Jean Rittenour, the mother of Parker Lofgren and grandmother of the two children.