The parents of a drowned toddler have brought VGB compliance into their lawsuit against a waterpark, despite the fact that the death was not a result of entrapment.

On Aug. 2, 2009, 3-year-old Hassan S. Itani was playing with his brother in the kiddie pool at Kalahari Waterpark Resort in Sandusky, Ohio. According to the claim, he walked out of view of his mother, exited the pool and went into an adjacent shallow lagoon.

The lawsuit states that Hassan’s mother began looking for the child immediately, then quickly asked park personnel for help. He was found floating face down in the approximately 3-foot-deep lagoon. A guest of the waterpark attempted CPR, but the boy died.

The child’s family filed suit in November 2009 against Kalahari and its owner, LMN Kondominium Development, claiming inadequate staffing and safety precautions.

Last month, the Itanis amended the lawsuit, stating that the resort did not meet its obligations under the Virginia Graeme Baker Pool and Spa Safety Act. VGB requires all commercial pools and spas to be outfitted with approved drain covers and either multiple drains, unblockable drains or a backup device such as an SVRS on single-drain systems. The deadline for compliance was Dec. 19, 2008.

This is the second lawsuit where VGB has been cited under what some consider questionable circumstances. The first occurred in Pittsburgh, where the wife of a drowning victim alleged that her husband was entrapped, though officials found no evidence supporting her allegation.

But unlike that case, there is no claim of entrapment at Kalahari. Instead, the suit states that if the out-of-compliance pool had been closed, as the law dictates, then Hassan would be alive today.

“The business decision by [the defendants] to keep the pool open and charge the public a fee for profit in violation of the civil and criminal statues renders them liable for the damages sustained to [the plaintiffs],” the complaint reads.

Furthermore, the suit cites sections of VGB and the Consumer Product Safety Act that allow victims to sue if a person or entity willfully violates consumer product safety laws.

The Itanis have requested an injunction to close the Kalahari pool until the renovations are made. “Plaintiff is concerned that the outdoor pools, including the Shallow Lagoon, will be reopened for the summer of 2010, while Defendants continue to violate the Safety Act and the Consumer Product Safety Act,” the complaint stated.

But industry experts question whether the VGB claims will have traction. “To me, trying to allege a VGB violation even though it has nothing to do with this injury is quite a stretch,” said Steven Getzoff, an attorney with Lester Schwab Katz & Dwyer, LLP, in New York and legal counsel for the Association of Pool & Spa Professionals. “I think most courts would be inclined … to dismiss a claim like that because it’s completely irrelevant.”

Furthermore, he asserted that if the pool had been brought to code before the drowning, the tragedy still would have occurred.

Regardless, some believe the industry will see VGB brought up in more lawsuits that don’t involve an entrapment.

“Facilities that are not compliant with VGB are under greater risk in any litigation,” said Thomas Lachocki, CEO of the National Swimming Pool Foundation in Colorado Springs, Colo. “When plaintiffs can show that a facility is not living up to federal law on one safety area, it’s more easy to imply that they may not be living up to standards of care in other areas.”