Owning Up to a Boy's Death
The Wall Street Journal
By ASHBY JONES
David Lionetti's swimming pool company failed to install a required safety device in a Connecticut family's backyard pool. That triggered the drowning of a six-year-old boy, state prosecutors argued, and led to an unusual homicide case against Mr. Lionetti, the company's president.
The prosecution spotlighted a rare but gruesome accident called entrapment, in which powerful suction from a pool's drain traps a swimmer underwater. The case also could pave the way for similar prosecution.
After the six-year-old, Zachary Cohn, was fatally trapped underwater in 2007 with his arm caught in the pool's drain, Connecticut prosecutors charged Mr. Lionetti, president of Shoreline Pools, of Stamford, with manslaughter.
Series of Deaths Moved Congress to Act
The Virginia Graeme Baker Act, sponsored by Rep. Debbie Wasserman Schultz (D., Fla.), picked up steam in Congress after the 2007 death of Zachary Cohn and an entrapment involving a six-year-old Minnesota girl named Abigail Taylor. It was signed into law in December of that year.
In 2002, Virginia Baker drowned when suction from a drain held her at the bottom of a backyard spa. It took two adults pulling on her body to remove her from the drain. She was pronounced dead on arrival at a local hospital.
Five years later, Abigail Taylor was disemboweled by the suction from a drain in a country club pool in St. Louis Park, Minn., and died months later, following a series of surgeries.
Several weeks after the incident involving Abigail, Zachary, the Connecticut boy, literally died in the arms of his father, who tried for several minutes to wrest his son's arm from the drain.
The federal act addressed public pools but largely left to the states the regulation of residential pools, where approximately half the entrapment accidents have taken place. No state has passed legislation requiring existing residential pools to adopt the standards of the federal law.
"Virginia Graeme Baker was a huge step in the right direction," said Ron Ford, an expert in pool systems and the author of a handbook on pool and spa operations. "But we only have 300,000 pools in the country that we'd consider public, out of a total of about 10 million. That leaves the potential for a lot of harm."
Safety advocates not only lament the absence of laws addressing residential pools, but also worry about how strictly the Virginia Graeme Baker Act and other regulations are being enforced. In light of the Lionetti plea, they're now looking to prosecutors to fill some of the gaps.
"We hope it sends a message," said Alan Korn, former executive director of the drowning prevention organization Safe Kids USA, "that if you run a pool company and you consciously or unconsciously ignore the law, you could go to jail."
.The prosecutors claimed that the company had failed to install a device that would have shut off the pump when an object got in the way.
Mr. Lionetti last month pleaded guilty to a misdemeanor, criminally negligent homicide, in what many safety advocates hope is a turning point in decades of efforts to force pool makers to address entrapment more aggressively. The plea, which averted a possible 10-year prison sentence, imposes a three-year term of probation and requires Mr. Lionetti to perform 500 hours of community service, much of which he will fulfill with janitorial services at a local Boys & Girls Club.
As part of a separate plea, Shoreline Pools was ordered to give $150,000 to a pool-safety organization started by the boy's parents, Brian and Karen Cohn. Brian Cohn is the former president of SAC Capital Advisors, the hedge fund run by Steven Cohen.
In an age of widespread civil suits over personal injuries involving everything from pharmaceuticals to heavy equipment to car tires, experts in criminal law say, the Lionetti case is an anomaly. Criminal prosecution of senior executives is far more common after an injury with products that are "inherently somewhat dangerous" and when higher-ups in the company played a "direct, hands-on" role in making the product, said Todd Fernow , a law professor at the University of Connecticut.
"For heaven's sake, it's a criminal case," said Steve Dunn, an executive of a pool-equipment distributor in Martinez, Calif., and a pool-safety consultant. "It sends the message that 'holy cow, we'd better know what we're doing here, because there are serious implications if we don't.' "Pool-industry experts say the criminal charges against Mr. Lionetti were the first ever lodged against an industry executive for an entrapment injury.
"It was clear that both Lionetti and Shoreline's behavior was to pay lip service to safety regulations," said Ernie Teitell, the Cohns' lawyer in separate civil litigation. "The plea indicates that safety has to be a number one priority."
Mr. Lionetti's lawyer, Richard Meehan, didn't return calls seeking comment. A representative for Shoreline Pools declined to comment. The prosecutors who handled the case didn't return calls requesting comment.
A federal bill was signed into law in 2007, after Zachary drowned, to prevent entrapment in public pools and spas. The Virginia Graeme Baker Act was named after the seven-year-old granddaughter of former Secretary of State James Baker who died in 2002 when suction from a drain trapped her at the bottom of a spa.
In entrapment, swimmers can be pinned to the floor of the pool or otherwise trapped until they drown or suffer serious injuries, including disembowelment. According to statistics gathered by the Consumer Product Safety Commission, from 1999 to 2008 there were reports of 83 entrapments nationwide, 11 of which involved fatalities. Small children are especially vulnerable.
Pool makers have made significant improvements in recent years, but safety advocates want them to move faster, and there are gaps in the patchwork of federal and state regulations that govern the pool industry.
The industry, with its main political arm, the Association of Pool & Spa Professionals, has lobbied against tougher rules, safety advocates say.
"They've fought safety efforts every step of the way," said Nancy Baker, the daughter of former Secretary of State James Baker and the mother of the girl killed in the 2002 accident. "It's always been more about saving money than safety with them."
Carvin DiGiovanni, a senior director with the APSP, said his organization had worked closely with federal lawmakers leading up to the Virginia Graeme Baker Act.
The law requires all public pools and spas to employ special upgraded drain covers to prevent entrapment and, in some instances, to install devices that reduce the water force should an object get stuck in the drain. Violations can bring civil or criminal penalties.
"Safety has always been a core value of the association and remains a core value," said Mr. DiGiovanni.
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