Pitkin County seeks dismissal from carbon monoxide case
Attorneys have filed a motion seeking the dismissal of the Pitkin County government and two of its building inspectors from a lawsuit that accuses them of having a role in the carbon monoxide poisoning deaths of a Denver family of four in November 2008.
The motion was filed Jan. 7 on behalf of the Pitkin Board of County Commissioners, the Pitkin County Community Development Department, former county employee Erik Peltonen and current inspector Brian Pawl. It claims they should not be held liable for the deaths, which occurred on either Nov. 27 or Nov. 28 of 2008, at a home on the outskirts of Aspen.
The commissioners, the department, Peltonen and Pawl are among 15 defendants being sued by the deceased family members’ relatives, who claim their combined failures and negligence led to the deaths.
The suit was originally filed in Denver County District Court in August, but was transferred to the U.S. District Court in Denver. The plaintiffs, represented by Denver lawyer William J. Hansen, have amended the complaint twice, most recently in November.
The county argues that the plaintiffs’ civil rights claim against the county, Pawl and Peltonen – they allegedly 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” – holds no weight. The county, the suit alleges, issued building permits and inspected the home in a reckless manner.
Citing several instances of case law, the motion to dismiss, however, argues the county defendants were not culpable in the deaths.
“The Public Defendants did not install or manufacture the failed equipment,” the motion says. “Someone else did. This is undisputed. All the Public Defendants did was regulate and inspect installations performed by others …”
The motion notes that Pitkin 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 continues: “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 – assuming the well-pleaded allegations of the Second Amended Complaint are true – 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.”
Additionally, the motion says that “building inspectors all around the country are tasked with investigating the work of countless contractors on multiple job sites every day. These job sites incorporate fixtures and mechanical systems manufactured by countless vendors. Even if an inspector’s failure to require accurate installation in accordance with the specified instructions of a particular apparatus amounted to negligence, it is not plausible to characterize such a failure as consciously reckless behavior.”
The suit scrutinizes the carbon monoxide poisoning deaths of 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 3 1/2 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 held at their school.
“The tragedy of this case is clear to anyone who looks at it,” says the motion to dismiss, prepared by county attorney Christopher Seldin, along with Boulder-based Josh Marks, who is representing Pawl, and Peltonen’s attorney Marni Kloster of Denver. “By all rights, the Lofgrens should still be with us. But the government cannot, unfortunately, protect all of its citizens all of the time.”
The lawsuit was filed by 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.
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, Marlin 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.
Both Pawl and Peltonen also were indicted by a Pitkin County grand jury on criminal charges last July. But earlier this month, Chief Attorney Arnold Mordkin dropped the misdemeanor counts of reckless endangerment against Pawl and Peltonen because the statute of limitations had expired.
Peltonen, however, still faces four charges of criminally negligence homicide, along with Brown, who’s also a defendant in the lawsuit.
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