A federal judge on Wednesday dismissed the civil lawsuit against Pitkin County and two building inspectors that was filed by relatives of the Denver family who died of carbon monoxide poisoning in a home near Aspen three years ago.
U.S. District Judge William Martinez in Denver said the plaintiffs failed to prove that the county, and its building inspector Brian Pawl and former inspector Erik Peltonen created the danger that led to the deaths of the Lofgren family.
The judge’s decision precedes a crucial hearing today in Pitkin County District Court in the criminal case against Peltonen and Marlin Brown, the owner of Roaring Fork Plumbing and Heating. Each are charged with four felony counts of criminally negligent homicide which were handed down by a grand jury in 2010. Chief Judge James Boyd is expected to rule on multiple motions to dismiss the counts filed by the defense. The criminal case against Pawl, who had been facing misdemeanor counts, was dismissed early this year.
Brown installed the snowmelt boiler that malfunctioned and leaked the gas into the residence east of Aspen, leading to the deaths of Caroline Lofgren, 42, her husband, Parker, 39, and their two children, Owen, 10, and Sophie, 8, in 2008. The family won a stay at the house through a fundraising auction.
Pawl and Peltonen signed off on the boiler and other infrastructure before a certificate of occupancy for the $9 million mansion was issued. In his order dismissing the lawsuit, Martinez noted the time frame of the inspections.
“The individual defendants performed the disputed inspections more than three years prior to plaintiffs’ deaths,” he wrote. “The certificate of occupancy was issued the summer of 2006, which means that it is likely that the boiler and [the heating/air-conditioning] system at the lodge were used for two winters without any harm befalling another occupant.
“Thus, any harm caused by the defendants’ perfunctory inspections was not ‘immediate’” as classified under the law in which the relatives sued.
The civil lawsuit was filed in August 2010, on behalf of Jean Rittenour, Parker Lofgren’s mother and Owen and Sophie’s grandmother; Frederick J. Feuerbach, Jr., Caroline Lofgren’s father and Owen and Sophie’s grandfather; and Hildy Feuerbach, Caroline Lofgren’s sister.
They alleged that the county and its inspectors had deprived the Lofgrens of their right to life under the 14th Amendment to the Constitution. That federal claim moved the case from Denver District Court to U.S. District Court.
Under the claim, the family contended that the alleged lax inspections led to the deaths under a “danger creation” theory. But a part of the theory holds that it must be proved that the county directed its conduct specifically at the Lofgrens.
The defendants’ conduct “in this case — performing inspections and approving the lodge for occupation — was directed at the public at large rather than” the family in particular, the judge wrote. That, combined with the lack of “immediate” danger, led to the dismissal of the lawsuit.
In his ruling, Martinez remanded the lawsuit back to the district court level. The relatives’ attorney, William Hansen of Denver, said they were disappointed with the ruling, but are “gung-ho” to pursue the remaining seven claims in the lawsuit.
None of those claims — among them negligence, manslaughter and product liability — were made against the county or the inspectors.
“Receiving this ruling doesn’t make us feel any less sorrowful about the loss of life that occurred, which was undeniably tragic,” said assistant county attorney Chris Seldin, who filed the motion to dismiss on behalf of Peltonen and Pawl. “But we do believe the federal court correctly applied the law. Now the plaintiffs can proceed with their case with the private-party defendants.”
Brown, along with nine other subcontractors who also worked on the home and Black Diamond Land Development Corp., which owns the residence, remain defendants.
Hansen said the judge based his ruling on narrow grounds.
“Somehow building codes are for the public, but they’re not intended to protect the residents inside the residences,” he said. “It seems a fairly sad proposition ... that there’s no civil accountability for building inspectors to do what they’re paid to do. They can pass any shoddy inspection and there are no consequences at all.”
Today, “we may or may not learn if there are any criminal consequences.”