Pitkin County to make its case in monoxide deaths lawsuit
August 5, 2011
ASPEN – A federal judge will hear arguments next week over whether an ongoing civil dispute can move forward between Pitkin County and the relatives of a Denver family of four that succumbed to carbon monoxide poisoning.
On Tuesday in the U.S. District Court in Denver, Judge William J. Martinez will preside over a hearing concerning the Pitkin County government’s motion to dismiss its community development department, elected commissioners and a current and former building inspectors from a lawsuit. Plaintiffs received notice of the hearing earlier this week.
The federal lawsuit claims that the county, former city building inspector Erik Peltonen and current county inspector Brian Pawl should be liable for the deaths. The Lofgren family members likely died on either Nov. 27 or Nov. 28 of 2008, at a home on the outskirts of Aspen.
In court filings in the spring, both sides debated why the suit should be dismissed or continued.
The arguments have taken on a seemingly personal tone, with the attorney for the surviving family members, William J. Hansen of Denver, alleging that the county behaved defiantly in the wake of a Pitkin County grand jury’s July 2010 criminal indictments of Pawl, Peltonen and contractor Marlin Brown, who’s also a defendant in the lawsuit.
Hansen, in a reply to the county’s motion to dismiss, wrote that the reaction of county officials after the indictment “was surprising and appalling.”
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“Pitkin County authorities publicly responded to the indictments as ‘bullshit,’ and a ‘greater tragedy’ than the deaths of the Lofgrens because the inspectors were ‘just doing their jobs,'” Hansen wrote. “Pitkin County not only failed to take any disciplinary action but actually agreed to fund their criminal defense.”
Hansen also argues that the criminal indictments support his contention that the county deprived the Lofgren family members of “their Constitutional right of life guaranteed by the Due Process Clause of the Fourteenth Amendment of the United States Constitution.”
The county disagrees, arguing that the “plaintiffs’ reliance on criminal indictments is at odds with axioms that the [criminally] accused in the United States are innocent until proven guilty, and that the indictments have no evidentiary significance and are inadmissible in civil cases.”
Additionally, the county defends the public position it took in the wake of the criminal indictments as “the government’s decision to stand behind the inspectors [which] indicates a belief that the indictments were wrong, not a belief that legal, life-threatening conduct was right.”
The suit alleges that Pawl and Peltonen inspected the home in the summer of 2005 and signed off on the home’s snowmelt system, including a Munchkin boiler that leaked the noxious gas, “despite open and obvious violations of the Pitkin County Code and building regulations.” In its motion to dismiss, the county contends that it “did not install the faulty equipment. They only inspected it – two full years before the Lofgrens died. … The state of the mechanical room on the night of the Lofgren’s [sic] – when pipes were clearly disconnected from the boiler and the risk was correspondingly obvious – is not the issue. It is the state of the room two years before, when the inspections were performed, that matters.”
The plaintiffs are Massachusetts resident Dr. Frederick Feuerbach, the father of Caroline Lofgren; Oregon resident Jean Rittenour, the mother of Parker Lofgren and grandmother of the two children; and Massachusetts resident Hildy Feuerbach, who is the sister of Caroline Lofgren and the representative of the deceased husband and wife’s estate.
The victims were Caroline Lofgren, 42, her husband, Parker, 39, and their two children, Owen, 10, and Sophie, 8. The family was staying at the home at 10 Popcorn Lane, about 31⁄2 miles east of Aspen. They had won a stay at the home, which did not have a carbon monoxide detector at the time of their deaths, at an auction at their school.
Other defendants in the suit include 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; Brown, owner of Roaring Fork Plumbing and Heating Co.; and Jonathan Thomas and Black Diamond Development Corp., which owned the house at the time the family died in it.
Brown and Peltonen are scheduled to stand separate trials in Pitkin County in November and December for felony charges of criminally negligent homicide. Pawl, however, no longer faces criminal misdemeanor counts of reckless endangerment after prosecutors threw out the charges because the statute of limitations on them had expired.