While many in the industry are alarmed by the recent homicide charges against a Connecticut builder for allegedly constructing an unsafe pool, legal experts said the district attorney will have a tough time proving the case.
In July, David Lionetti, president of Shoreline Pools in Stamford, Conn., was charged with second-degree manslaughter for the entrapment death of a 6-year-old boy. Zachary Archer Cohn drowned in 2007 after his arm became stuck in a wall drain. The pool was built without dual main drains or a safety vacuum release system, both of which were required by the state’s building code.
Lionetti was released on $25,000 bail. He pled not guilty, and the case is scheduled for trial Oct. 15.
Legal experts say that securing a conviction may prove difficult. Second-degree manslaughter, known in some states as involuntary manslaughter, means the defendant’s own recklessness directly caused another’s death.
“I think it quite doubtful that the state can succeed in imposing criminal responsibility on the president of the company vicariously, that is, holding him strictly responsible for what an employee of his company did or failed to do,” said Steven Duke, a professor of law at Yale Law School.
For there to be a conviction, experts say, the district attorney must show that Lionetti knew codes had not been followed on the Cohn pool, and that the requirements were created to reduce the risk of drowning.
It wouldn’t be enough to prove that Shoreline — as a firm — was at fault. “What’s really going to be at issue for that individual person’s culpability … is, what did that person do that led to this child’s death?” said Rebecca Lonergan, a professor of law at USC School of Law.
The DA may even have to show the way in which Lionetti prevented the SVRS and dual main drains from being built. For instance, he may find witnesses who say that Lionetti never told his employees to build the pools with these devices.
“You have to show individual responsibility on his part for how the pool ended up being built, and that’s going to be an internal kind of thing, [examining] what kind of policies they had in place,” Lonergan said. “If he did know about the code change and then failed to communicate that to his people ... the jury has to decide [whether that failure] amounts to unjustifiable risk of a foreseeable death.”
The arrest affidavit seems to indicate that the DA is already building the case that Lionetti knew about the code.
It includes a statement from John Romano, a former APSP chairman and president of Norwalk, Conn.-based All American Custom Pools. Romano said that he spoke with Lionetti on the phone in late 2005 as part of an industry campaign to educate Connecticut builders about the entrapment-prevention requirements, which were new at the time. The pool’s permit is dated June 5, 2005, and the pool was completed in summer 2006.
In addition, the affidavit states, the Northeast Spa & Pool Association sent out a notice to its members in May 2005 to raise awareness about the code change. Shoreline is a NESPA member and presumably was on the mailing list.
But the DA needs to prove not only that Lionetti was aware of the code, but that he knew he was putting people at risk.
“Even if the code’s in place, you have to show that on an individual level, that person recklessly and unjustifiably disregarded a sustantial risk of death or serious injury,” Lonergan said.
As far as the SVRS goes, Lionetti’s attorney could opt to argue that many in the industry believe the devices to be unnecessary. “[Lionetti] might claim he personally believed the new requirements were unnecessary, or perhaps even create new safety risks,” Yale’s Duke said.
It remains to be seen how the dual main drain requirement will factor into the equation. Though many industry members have installed them for 10 years or more, dual main drains in pools didn’t become specifically listed as part of APSP standard until 2006, according to Carvin DiGiovanni, senior director of technical, education and government relations for APSP. However, National Spa & Pool Institute standards began specifying multiple main drains per pump for spas in 1992. But rather than focus on the number of drains, this case, so far, has emphasized the lack of an SVRS.
If the DA thinks the case for second-degree manslaughter cannot be won, the state may aim for the lesser charge of negligent homicide. This would only require showing that Lionetti should have known of a substantial and unjustifiable risk of death. Proving negligence also is generally adequate for winning a civil suit.
Some in the industry have speculated that Shoreline Pools would have a hard time matching the Cohns in court. Earlier this year, the family filed a civil suit against multiple defendants, including Shoreline.
At the time of Zachary’s drowning, his father, Brian, was the president of one of the largest hedge funds in the nation. Clearly, some say, the family can afford top-tier representation. Though the Cohns’ legal team would be working on the civil case, their findings also could work against Lionetti in the criminal case as well. The district attorney may be using evidence that the Cohns’ personal attorney was able to find.
“There’s nothing unethical with the DA taking whatever evidence he gets,” Lonergan said.
It would be problematic to bring charges simply because of the Cohns’ wealth, she added, but it is fairly common to take such action as a way to scare an industry into following laws and codes more carefully. “Again, there’s nothing wrong with a DA pushing a case pretty hard because they’re looking for a deterrent effect,” Lonergan said. “But to convict an individual, they’re going to have to have the individual evidence.”
It’s not impossible. About 15 years ago in the same state, a licensed electrician served five years for the same charge after a heater he wired as a favor for a neighbor caught fire, burning the house and killing a child.
The state garnered a conviction by proving the electrician should have known the proper way to wire the heater because he had obtained his license and had plenty of experience. The defendant also admitted he knew the purpose of the electrical code was to prevent fires and that he had attended seminars about the codes.