Historic Entrapment Lawsuit is Settled

This article is being included within the Case Studies section because Gerald Dworkin consulted and testified in this matter as an Aquatics Expert. Additional information may be posted later.

Author: Rebecca Robledo / Aquatics International
Date: May 16, 2013

The family of a high-profile entrapment victim has settled a wrongful death lawsuit for a total of $40 million.

The entire sum will go to a charity created in the child’s name, according to the Connecticut Law Tribune, which first reported the settlement.

This marks the closing chapter of one of the most well-known drowning tragedies in the industry.

In July 2007, 6-year-old Zachary Archer Cohn drowned in his parents’ backyard pool after his arm became stuck in a wall drain meant to feed a spillover spa.

The tragedy, along with the entrapment of 6-year-old Abigail Taylor just a month before, garnered extensive national media attention and helped revive a then-struggling bill, the Virginia Graeme Baker Pool and Spa Safety Act. The legislation later passed and became the first federal pool and spa safety law in the United States.

In early 2008, Zachary’s parents, Brian and Karen Cohn, filed a lawsuit naming nine companies and individuals, including pool contractor Shoreline Pools of Stamford, Conn., its sister company, Shoreline Pools service; Hayward Industries, A.O. Smith and Baystate Pool Supplies (which was dropped from the case).

The Cohns also named defendants outside the industry, including the town of Greenwich, Conn., where officials stamped the original plans and inspectors approved the pool during construction; engineer Robert Frangione and his employer, S.E. Minor & Co.; and Aberdeen Properties, the general contractor for the home and pool.

All defendants have now settled. Shoreline paid $11 million, according to the Cohns’ attorneys, while Hayward and A.O. Smith settled product liability claims for a combined $15 million following mediation. Engineering firm S.E. Minor & Co. and general contractor Aberdeen Properties settled for $2 million each. The town of Greenwich was the last to reach an agreement, for $10 million.

The case also marked the first time a pool builder was held criminally responsible for a drowning that occurred in a pool he or she built. In 2008, Shoreline President David Lionetti was charged with second-degree manslaughter. Police said the company recklessly caused Zachary Cohn’s death by failing to install safety devices that had been required in the state since 2004, the year before the pool was permitted.

The Cohns also said Shoreline was aware that the drain cover was loose, but didn’t fix it during subsequent service calls.

Lionetti pleaded guilty to criminally negligent homicide in 2011. He was spared jail time, but his company shouldered the manslaughter charge and agreed to a number of unusual terms: The firm would host a safety-awareness booth at the International Pool|Spa|Patio Expo and the Atlantic City Pool & Spa Show for three years; Shoreline would bring 100 residential pools into compliance with safety codes free of charge over the course of 10 years, and it would pay $150,000 to the ZAC Foundation to be used on safety-awareness ads. In addition, Shoreline was required to compile a list of all pools built in Connecticut since the 2004 mandate of dual main drains and safety vacuum release systems, and pay for the mailing costs of safety brochures from the ZAC Foundation. Finally, Lionetti had to perform 500 hours of community service.

Lionetti’s attorney said his client wishes the best for the Cohn family. “We are … relieved to see that this matter has come to a conclusion for the Cohn family because we’ve always been mindful of what a horrific tragedy this was for them,” said Richard Meehan Jr. of the Bridgeport, Conn., firm Meehan Meehan and Gavin. “Litigation, no matter the end result, when it deals with the tragedy of a loss of a child, just serves as a constant reminder of what that loss was. So our fond hope is that they find peace now.”

Some industry professionals felt heartened that something positive could come out of tragedy. Karen and Brian Cohn established the ZAC Foundation shortly after their child’s death and, to date, have partnered with numerous organizations to educate people, especially children, about swimming and aquatic safety.

At this point, Shoreline Pools and David Lionetti continue to work on meeting their obligations. Since the settlement in 2011, Shoreline has sponsored booths at the industry shows for two years and has brought an average of 10 residential pools per year into safety compliance free of charge. Additionally, Lionetti continues to perform his community service with the local Boys & Girls Clubs and, Meehan said, renovated one of the organization’s pools free of charge to bring it into compliance, done in addition to the court obligations.

Experts said the case should serve as a warning to those who don’t take the VGB Act and other safety codes seriously. Though the federal law is spottily enforced in many areas, it will come into play if there’s an accident and ensuing lawsuit, and government agencies won’t have immunity.

“In the United States, especially in Florida right now, health departments have blatantly said they’re not enforcing either the state law or VGB because they don’t have the manpower or personnel,” said Paul Pennington, head of the Pool Safety Council. “This should be a real awakening for these municipalities. How many of them can afford a $10 million judgment?”

Representatives for the Cohns and the ZAC Foundation could not be reached by press time for comment.