SUPERIOR, Colo. — The family of a Superior woman who died in the Marshall Fire has filed a wrongful death lawsuit against Xcel Energy.
Nadine Turnbull, 91, and her granddaughter, Layla Cornell, were in the home at the time of the fire. Cornell was able to escape the flames but wasn’t allowed to return for Turnbull at the request of a fire marshal.
On Jan. 19, 2022, the Boulder County Sheriff’s Office said small bone fragments were found in the remnants of the property and that testing was underway to see if they were that of Turnbull.
Turnbull was one of three people who were missing in the immediate wake of the Marshall Fire. One person was found alive and a second person, later identified as Robert Sharpe, 69, of Boulder, had died in the fire.
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The family of Turnbull are basing their "cause of action" or reason to sue Xcel on eight things, including six that overlap with a Bounder County lawsuit also recently filed against Xcel Energy.
Wrongful death
Xcel's actions were a direct result of Turnbull and Sharpe dying, according to the lawsuit.
"Plaintiffs suffered the loss of... companionship... affection, moral support, protection, care, attention, advice, or counsel, loss of... advice, or counsel of a reciprocal beneficiary... or loss of parental care, training, guidance or education" from the person who died, the lawsuit reads.
More tangibly, the family of Turnbull incurred funeral and/or burial expenses, according to their lawsuit, in addition to the loss of the deceased's estate.
Survival action
A survival action is the recovery of damages for a fatally injured person brought by his or her personal representative, according to Merriam-Webster's Legal Dictionary.
Turnbull's "representatives" or family members listed as the plaintiffs in this lawsuit have had to pursue all legal claims for damages relevant to the property that was destroyed in the Marshall Fire, according to the lawsuit.
"As a further direct and legal result of Defendants’ actions... expenses were incurred for the identification and/or removal of Decedent’s remains and other medical and/or emergency services related to the Marshall Fire," the lawsuit reads.
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Inverse condemnation
Inverse condemnation is a legal cause of action used by property owners when a governmental entity takes an action which damages or decreases the value of private property, according to Cornell University.
"Private property shall not be taken or damaged, for public or private use, without just compensation," the lawsuit reads, citing the Colorado Constitution Article II Section 15.
Negligence
At all times prior to Dec. 30, 2021, Xcel Energy had a duty to properly design, inspect, maintain, repair and operate its electrical equipment and avoid any foreseeable risk of injuries to plaintiffs, the lawsuit reads, adding that the company breaches those duties.
That included failing to perform required work, failing to take appropriate precautionary measures, train and supervise its employees and contractors, and recognize, identify and discover safety threats, among other allegations.
This caused various types of damages, the document reads, which included losses from wages to soil erosion to economic damages.
"Plaintiffs have also suffered general damages including, but not limited to, shock, embarrassment, physical distress and injury, humiliation, emotional distress, stress, and other damages to be proven at time of trial," it reads.
Premises Liability
Premises liability law establishes the obligations property owners have to people on their land, especially when someone is injured, and the types of compensation an injured party can receive, according to Forbes. To prove a premises liability charge, a plaintiff has to prove the defendant owned or occupied the property at the time of the injury, the defendant was negligent in maintaining the property, the plaintiff suffered an injury as a result of the defendant's negligence and you can be compensated for the injury, Forbes said.
The lawsuit reads that defendants failed to properly inspect the property and easement and allowed "an unreasonably dangerous condition to exist."
"Moreover, Defendants had actual knowledge and/or should have known of the risks of harm associated with power utility equipment and combustible materials causing or fueling fires," it reads. "Defendants’ own power utility equipment has caused and contributed to multiple fires in Colorado in the past two decades."
Trespass
According to the lawsuit, "Defendants actually and proximately caused the Marshall Fire to enter the surrounding properties, including Plaintiffs' real property or personal property."
This resulted in the plaintiffs feeling shock, embarrassment, injury, and emotional distress, in addition to the substantial damage.
Public Nuisance
Public nuisance means conduct that interferes with the rights of the public, according to Cornell University.
The defendants created a "condition which was harmful to the health of the public," the lawsuit reads.
"The dangerous condition which was created by and/or allowed to exist by Defendants affected a substantial number of people within the general public, including these Plaintiffs," it continues. "As a result of Defendants’ conduct, Plaintiffs suffered a type of harm that is different from the type of harm suffered by the general public. Specifically, Plaintiffs have lost the use and enjoyment of their land, including, but not limited to, a legitimate and rational fear that the area is still dangerous, diminution in the fair market value of their property, impairment of the salability of their property, exposure to an array of toxic substances on their land, a lingering smell of smoke, and/or constant soot, ash, and dust in the air."
Private Nuisance
A private nuisance violates a private right not common to the public or causes damage to one or a limited number of individuals, Cornell University said.
Turnbull's family alleges the defendants' failure to act resulted in a fire hazard and "foreseeable obstruction" to the free use of the plaintiffs' property... causing "unreasonable harm and substantial actual damages constituting a nuisance," the lawsuit reads.
The plaintiffs are asking the court for the money to repair the property to its original condition and/or loss-of-use damages.
Xcel Energy released the following statement in response to the lawsuit Thursday morning:
“Our thoughts are with the family grieving such a deeply personal loss related to the Marshall Fire. Xcel Energy maintains the cause of this tragic event was not related to its powerlines. The official investigative report filed by the Boulder County Sheriff’s Office determined that the Marshall Fire started as a result of ignition on a property (5325 Eldorado Springs Drive), reportedly affiliated with an entity called the Twelve Tribes. We will continue to support our Boulder neighbors throughout the recovery.”
Turnbull's family is seeking relief for the loss of wages and/or earning capacity, alternative living expenses, medical expenses and costs, in addition to the funeral and/or burial expenses. The plaintiffs are also seeking compensation for mental and emotional distress, medical monitoring of future injuries from emotional trauma and smoke inhalation, and attorneys fees, just to name a few.
