Civil suit targets 12 for carbon monoxide deaths

by Andrew Travers, Aspen Daily News Staff Writer
Defendants include indicted men, Pitkin County, house owner

Relatives of a family of four killed by carbon monoxide poisoning in an Aspen-area home filed a civil lawsuit Wednesday targeting 12 defendants, including three local men indicted on criminal charges for the deaths, the owner of the house where they died, the manufacturer of the boiler that allegedly leaked the poisonous gas, Pitkin County and the county’s community development department.

The suit, filed in Denver district court, contains 39 pages of allegations against the 12 parties, including claims of negligence, manslaughter, product liability, and civil rights violations.

Parker and Caroline Lofgren of Denver and their two young children were poisoned by carbon monoxide in a home east of Aspen on Thanksgiving night 2008.

“Our hope is that the civil case will allow us to determine what caused their deaths,” said Hildy Feuerbach, Caroline Lofgren’s sister. “Our ultimate goal is to make sure that this never happens again.”

The suit is one part of a campaign waged by the Lofgrens’ relatives to raise awareness about carbon monoxide poisoning and tighten laws and building codes to prevent it. Since the November 2008 incident, stricter carbon monoxide laws have been passed in Colorado, Oregon, Maine and Washington.

The court filing by Denver attorney William Hansen requests a jury trial and an undisclosed sum in monetary damages, exceeding $100,000.

“This is a sad day,” Feuerbach said. “I don’t think there will ever be closure for us, but this is all we can do. We just need to find out what happened and get the facts.”

Because the criminal case was handled through a closed-door grand jury proceeding, and the evidence from the Pitkin County Sheriff’s Office has not been made public, this civil suit offers the most complete breakdown of what may have caused the Thanksgiving tragedy on Popcorn Lane.

It states that the Lofgrens won the Aspen vacation at an auction, titled “Life is Sweet,” to benefit St. Anne’s Episcopal School in Denver, where Owen and Sophie were enrolled. They bid $6,000 with another family for the trip. At the auction, a description of the home read, in part, “This historic home was meticulously renovated by a renowned team of craftsmen.”

Their second night in the home, Thanksgiving, after the family went to sleep, it began to snow outside, and the house’s gas-fired snowmelt system was activated as a result. It then leaked the carbon monoxide believed to have killed the family.

The next day, a family coming to join them on the vacation found all four Lofgrens dead, some bloodied from hemorrhaging through their noses and mouths, later determined to be caused by carbon monoxide poisoning.

The lawsuit states that the original source of the poison gas was the boiler, housed in a mechanical room beneath the room where the family was found together.

It claims five preventable causes that led to the family poisoning.

One, that the exhaust piping was disconnected, because it had been “neither properly primed, glued or sealed and was not securely attached, supported or braced in any way.”

Two, that a vent designed to take in fresh air from the outdoors was disconnected and recirculating carbon monoxide into the boiler due to similar problems.

Three, that the boiler itself was defectively designed. The suit claims it should have automatically shut off when the high levels of carbon monoxide were present. Instead, the suit claims the “boiler failed to sense this danger and shut off but, rather, continued to operate producing yet deadlier levels of carbon monoxide.”

Four, that a ventilation system that should have funneled the gas out had been improperly installed.

Five, that there was no carbon monoxide detector in the house.

“The absence, elimination, or correction of any one of these conditions may have prevented the deaths of one or more members of the Lofgren Family, or substantially reduced the risk of such deaths,” the suit concludes.

The suit claims negligence on the part of Roaring Fork Plumbing and Heating Company and its owner Marlin Brown, who installed the boiler and venting system and allegedly failed to read the manufacturer’s instructions, while also not complying with Pitkin County’s building code. Brown has also been indicted criminally for negligent homicide and reckless endangerment. He is scheduled for his first court appearance on Monday in Aspen.

The same claim is made against Eagle Air Systems, for improper installation of the venting system.

Proguard Protection Services is also named as negligent, for not installing a carbon monoxide detector when it put in fire and security systems at the home. A CO detector was required under the county code.

Integrity Construction and its owner John Wheeler were also named negligent, for overseeing work on the home, including the installation of the snowmelt system.

Jonathan Thomas and his company, Black Diamond Land Development, are also named negligent for their oversight of the project. They owned the house at the time of the incident, and had it on the real estate market for $8.95 million.

Brown, Roaring Fork Plumbing, Black Diamond, Integrity Construction and John Wheeler are additionally named in a claim for “negligent performance of an inherently dangerous activity” for their work on the house.

A claim for felonious killing, or manslaughter, again names Brown, Roaring Fork Plumbing, Eagle Air, Proguard, Integrity Construction, John Wheeler, Black Diamond and Thomas.

The suit claims product liability on the part of Heat Transfer Products, of Massachusetts, for manufacturing the “Munchkin” brand boiler that allegedly created the lethal carbon monoxide gas. It further claims that Heat Transfer violated the Colorado Consumer Protection Act by advertising the Munchkin as “the safest operating appliance available” when it had caused other poisoning incidents.

The suit alleges Pitkin County violated the Lofgrens’ right to life under the 14th Amendment of the  Constitution, and names the county community development department and its employees Erik Peltonen and Brian Pawl as defendants. Peltonen was indicted last month for four counts of criminally negligent homicide and reckless endangerment. Pawl was also indicted, for misdemeanor reckless endangerment. They are due in district court on Monday. The county and city of Aspen have pledged to pay for their criminal defense.

The civil suit says the men inspected the home and granted it a certificate of occupancy, overlooking all the defective work on the snowmelt and ventilation system.

“[T]he sole focus of the inspection,” the suit alleges, “should have been the proper installation of the ‘Munchkin’ boiler, its gas line, and the venting system located in the mechanical room at 10 Popcorn Lane, and protruding from the roof.” It claims they recklessly disregarded obvious flaws in those installations before signing off on the property. It further claims the men showed “a knowing, purposeful and reckless pattern of nonenforcement or selective enforcement of the Pitkin County Code.”

It claims the county itself also violated the Lofgrens’ right to live by inadequately training the inspectors, and also for not disciplining the men, and coming to their defense following the criminal indictment.

The suit was filed 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. The family is spread out across the country, from Oregon to Massachusetts, but they held a collective press conference in Denver on Wednesday to speak about the lawsuit and their carbon monoxide awareness campaign.

“If Parker and Caroline were alive today they would do everything within their power to find out what caused this preventable tragedy, to hold those responsible accountable, and to ensure that such a tragedy would never happen again. We are their voices,” said Jean Rittenour, Parker Lofgren’s mother.