Indictments in Aspen carbon monoxide deaths could set precedent
July 28, 2010
ASPEN – Pitkin County District Court is now the battleground for a case that will be watched carefully by attorneys and building officials around the state.A grand jury’s indictment of two building inspectors and a contractor in connection with the carbon monoxide poisoning deaths of a family of four near Aspen has sparked debate about whether the fatalities rise to the level of a criminal prosecution. Historically, experts say, negligence cases are restricted to the civil arena of lawsuits and mediation. Carbon monoxide poisonings rarely enter the criminal realm.”I’ve been in this job for almost 20 years and I’ve talked to a bunch of people, and no one has ever heard of anything like this,” said John Worcester, attorney for the city of Aspen.On Thursday, following a Pitkin County grand jury session that lasted nearly a year, indictments were issued against Glenwood Springs resident Marlin Brown, 56, the owner of Roaring Fork Plumbing & Heating, and Erik Peltonen, 68, of Basalt. The two face four class-five felony charges of criminally negligent homicide in the Thanksgiving 2008 deaths of Caroline Lofgren, 42, her 39-year-old husband, Parker, and their children Sophie, 8, and Owen, 10. A friend found their bodies in the bedroom of a home in which they were guests, located at 10 Popcorn Lane, about 4 miles east of Aspen.A third person, 46-year-old Brian Pawl, who works as a building-plan examiner and field inspector for Pitkin County, also was indicted on four misdemeanor counts of reckless endangerment, charges that Brown and Peltonen also face.Worcester, who said he is not privy to the evidence, said the indictments send a clear message: “If I was a building inspector, I would be very, very careful.”Likewise, Mayor Mick Ireland said the indictments “may be unprecedented, and I’m not sure if that’s good.””We have to be concerned for current and future employees if building inspectors are going to be criminalized,” Ireland said.Worcester said the city is exploring funding the defense of Peltonen, who is now retired from the city and aided the county during the inspection of the Popcorn Lane home, built in 2005. The city could also help fund Pawl’s defense, which the county is mulling as well.Relatives of the Lofgren family have maintained that justice is being served with the indictments.Massachusetts resident Hidly Feuerbach, the sister of Caroline Lofgren, said Monday she believes that the criminal proceedings send an “important message that those responsible be held accountable.””I’m not surprised at the grand jury’s outcome,” she said. “I think there was a lot wrong with the house and I think that it’s important that the facts come out to help ensure that this will never happen again … We appreciate that the district attorney called for a grand jury and that they came out with this decision.”Denver attorney William Hansen, who plans to file a civil lawsuit sometime next week on behalf of the victims’ relatives, said the 9th Judicial District Attorney’s Office did the right thing by taking the case to a grand jury, which conducted its sessions behind closed doors.”You pay these people [inspectors and contractors] to do a job,” Hansen said. “They issue a certificate of occupancy on that place, and all they did was a casual inspection. There’s all kinds of code violations, and I think they should be held accountable.”The Pitkin County Sheriff’s Office, which conducted its own investigation following the deaths, determined that criminal charges should not be filed.The sheriff’s office concluded that a dislodged piece of PVC pipe carrying exhaust from a driveway snowmelt system leaked lethal amounts of carbon monoxide – a poisonous, odorless gas – into the home. The home, which sold last month for $8 million, did not have a carbon monoxide detector installed even though a county ordinance required one.Stephen Thomas, president of Denver-based Colorado Code Consulting Inc., which advises city and county building departments, as well as architectural firms, said the indictments could set a chilling precedent for the building inspection industry.”From our standpoint it’s very scary,” he said. “Inspectors already have a civil liability, and now they have to be worried about criminal liability. We talked about [the indictments] in our office, and it’s pretty frightening that this could be possible.”Thomas said the indictments could change the way building inspection departments across the state conduct their affairs.”Does that mean that jurisdictions need more inspectors to do their job, or does that mean some just don’t do inspections at all?” he said, noting that the state of Colorado does not require that governmental entities have building codes.Boulder attorney Jeff Gard, who has represented victims of carbon monoxide poisonings in civil lawsuits, said he has not heard of public officials being criminally indicted in a carbon monoxide case.”I myself have never been able to attract a district attorney’s office to even consider prosecuting carbon monoxide case,” he said. “For the most part law enforcement sees it as a civil issue.”Gard likened the prosecution of the inspectors and contractor to a physician being charged with homicide after a patient dies during surgery. Those incidents can result in a wrongful death or negligence lawsuit, but not criminal charges, he said.”People die on the operating table because of medical malpractice,” Gard said. “Are these doctors going to be charged for criminally negligent homicide?”Obtaining a jury conviction poses much more difficult than getting grand jury indictment, Gard said.”The real problem [prosecutors] are going to have is getting a conviction,” he said. “It’s one thing to get an indictment out of a grand jury. That’s not terribly difficult: The facts are presented by one side, by the prosecution.”It’s entirely different when a person’s freedom is going to hang in the balance with the reasonable doubt standard.”Even so, Gard said the victims’ relatives “deserve justice wherever they find it.””I do think what happened was wrong: If you go into a house, you shouldn’t die from carbon monoxide poisoning. We’re talking about malpractice in the inspection process.”Criminal prosecutions in carbon monoxide poisoning deaths, while not common, have happened.Perhaps the most notable outcome to a carbon monoxide criminal case came in 1996, when a Suffolk County (New York) jury found pool mechanic Bartholomew Torpey and his employer, East End Pools and Courts Inc., not guilty of criminally negligent homicide in the death of tennis star Vitas Gerulaitis.Gerulaitis was found dead of carbon monoxide poisoning in September 1994, in the pool house of a Long Island estate. Prosecutors said the pool man failed to properly install a ventilation pipe for the home’s pool heater.