Capozzi v. Bally’s Park Place

This civil law suit was brought resulting from the unrecognized drowning death of a 59-year-old guest in the hotel swimming pool, even though there was at least one lifeguard on duty.

Author: Gerald M. Dworkin
Date: October 23, 2014



The Spa at Bally’s Park Place is located on the 8th floor of the property and the hours of operation for the swimming pool are form 7:00 AM to 8:45 PM, Monday through Saturday, and from 7:00 AM to 6:45 PM on Sundays. Bally’s charges guests an additional $10 per room per day for the use of the pool, or $20 per person per day for the use of the full facility, including locker, cardio and weight rooms, and the use of the pool.

Description of Incident

At approximately 1:45 PM, there was a safety check announcement over the loudspeaker in the pool area that required patrons to exit the pool for 20 minutes. At the conclusion of the safety check, patrons were allowed to re-enter the pool. There were approximately 30 – 40 persons present in the pool area.

Based on testimony provided, the impression is that there were two lifeguards on duty at the time, although only one statement exists from one lifeguard.

Prior to the incident, 59-year-old Henry James Capozzi had been sitting poolside reading with his brother-in-law. At approximately 2:16 PM, Mr. Capozzi entered the pool and within 13 seconds of entering the water, his distress is evident via the security camera footage. Several minutes later the brother-in-law heard someone yelling and saw Mr. Capozzi floating face-down in the pool.

The Lifeguard had been walking around the pool during the fifteen minute safety check. In his statement, he said that as “they reopened the pool” he walked behind the pool desk, and then observed several young children splashing an older man who was face down in the water. According to his statement, “My first though was the older male was playing around with the kids. I gave it about 30 seconds before I started walking around the pool desk.”

D.C. (a guest) had been swimming in the pool. When she got out and was walking over to her chair, her friend said a gentleman was floating face down in the pool. She then approached the man and when she realized he was unconscious, she turned him over. The lifeguard and another man then pulled the victim out of the pool and laid him on the pool deck. CPR was started by a lifeguard with the assistance of another bystander.

One of the Spa Attendants phoned the Security Command Center to inform them of the incident. The Spa Supervisor went out to the pool to investigate and assisted the lifeguard with the administration of CPR. However, the supervisor failed to respond with the Spa’s AED and resuscitation equipment, which was kept behind the Spa Reception Desk.

The supervisor stated, “about 2:15 a spa attendant came out to front desk and needed to call security for a guest that passed out. I went out to pool and assisted in CPR until paramedic came into spa.”

Security personnel were dispatched to the pool by the Security Command Center. According to the Bally’s Park Place Security Incident Memo, Specialist S.S. was dispatched by the Command Center to respond to the swimming pool area “for a guest who was found floating face down in the pool.” Security Supervisor J.K. and Security Manager J.G. were also notified of the incident and responded to the spa area as well to assist.

Upon arrival of Security personnel, however, they took no actions to assist in the resuscitation effort and only maintained crowd control until the Medics responded to the scene and took over. They, too, failed to respond with an AED.

Medics arrived at 14:32:46, 16-minutes after the onset of Mr. Capozzi’s distress. Upon their arrival, Mr. Capozzi was assessed to be asystolic. ACLS was initiated and maintained as he was transported to the hospital emergency room where he was subsequently pronounced deceased at 14:58 hrs.

Mr. Capozzi was 64″ tall and weighed an estimated 180 lbs. His autopsy showed that his bronchi contained frothy mucoid liquid, with acute congestion in the lungs, and the cause of death was listed as: Asphyxia due to Drowning.

Security Footage

The water appears to be extremely cloudy. In fact, if the pool water was that cloudy on the day of the incident, the pool should have been closed and no one should have been allowed to use the pool until the clarity improved.

Incident Timeline: Camera 1

2:16:00 Mr. Capozzi enters pool
2:16:13 Mr. Capozzi appears to fall/trip face first into a prone position in the water and struggles at the water’s surface
2:16:57 Mr. Capozzi appears to have been rendered unconscious
2:17:31 Ball hits Mr. Capozzi
2:17:53 Man on deck throws ball at Mr. Capozzi and hits him on the head as man on deck continues walking on the deck
2:18:12 Multiple children around Mr. Capozzi looking at him above and below the water’s surface
2:19:02 Pool appears to be crowded with approximately 20 patrons in the pool
2:19:40 Woman jumps up from chair
2:20:11 Video stopped

Incident Timeline: Camera 2

2:19:32 Someone turns Mr. Capozzi
2:19:41 Mr. Capozzi removed from pool by 3 people
2:20:02 CPR initiated

It appears that Security personnel arrive on scene at approximately 2:26:54, and that EMS personnel arrive on scene at 2:32:46.

Mr. Capozzi’s distress, as both an active and passive drowning victim, went unrecognized by the trained lifeguard from 2:16:13 until 2:19:41, a period of almost 3.5 minutes. Although CPR was started quickly upon Mr. Capozzi’s removal from the pool, an AED was not provided by the lifeguard, by the Spa personnel, or by Security personnel during the entire resuscitation effort, even though one was available, only a few yards away from the incident.

EMS arrived on the scene 16 minutes after the onset of Mr. Capozzi’s distress and an AED was not provided within the window of opportunity during which time Mr. Capozzi could have had a shockable rhythm. Instead, a defibrillator was not brought to the scene until the arrival of EMS, at which time Mr. Capozzi was in asystole, which is a non-shockable rhythm.

Print Article