Prosecutors Playing Dirty Pool

Criminal liability for malfunctioning pools?

Scragged has commented on the seemingly inexorable and unstoppable tendency of any bureaucracy to expand its reach, power, influence, and budget.  The harm done by growing bureaucracies is usually confined to increasing taxes and wasting our time as we deal with new agencies, but bureaucratic excess can cause a lot more harm than merely wasting our money.

We've written about the tendency of district attorneys, state attorneys general, and justice department appointees to abuse their prosecutorial powers for political advancement. We've also deplored the fact that prosecutors seem to be trying to extend the definition of criminal law to include violating a web site's terms of service.  Given the vast damage that criminal prosecution can do even when people turn out to be innocent, any extension of the government's reach into new areas of criminal law is cause for concern.

Now we have another example.  The Hartford [CT] Courant reports that Connecticut prosecutors have charged David Lionetti, president of a pool installation company, with criminal manslaughter after a six-year-old drowned when his arm was trapped by the suction of a drain pump.  The article explains why this is unusual:

"My guess is, if you've got a business where you're dealing with dynamite or nitro, they're going to hold you to a reckless standard if you do anything remotely off the protocol," said Todd Fernow, a professor at the University of Connecticut School of Law, who heads the school's criminal law clinic.  "But for something like a pool? People drown in pools every day."

Swimming pools are so dangerous to children that society has created the legal doctrine of "attractive nuisance."  Children are attracted to swimming pools; any pool owner must take reasonable precautions to make sure that children won't be harmed even whey trespass illegally.

The owner must put up a fence, install a cover, or take whatever measures are reasonably necessary to protect children who happen by when no adults are around.  Standards of what constitutes adequate protection vary with the circumstances, of course, but adults are routinely held liable when children are hurt by a pool which was too easily accessible to them.

The police say that Lionetti "recklessly caused the death" of 6-year-old Zachary Cohn in 2007 by failing to install mandated safety devices in the pool.  Prof. Fernow commented further:

"There are going to be a lot of dueling experts. It's going to be a very difficult case to litigate depending on [Lionetti's] track record," he said.  "They're going to have to show actual knowledge on his part of the failure to take measures. And I would be surprised, without knowing all of the facts, if this goes all the way."

It's possible, he said, that "this is just a show trial, to accomplish the purpose by scaring people." [emphasis added]

Prof. Fernow is a practicing criminal defense attorney; he wouldn't use the term "show trial" without knowing what he's talking about.  Forcing someone through a criminal trial just to scare other people is a reprehensible abuse of prosecutorial power.

As Prof. Fernow pointed out, "People drown in pools every day."

Since 1985, more than 150 cases have been reported in the U.S. of swimming pool drain entrapments, leading to at least 48 deaths and many serious injuries, including disembowelment, of children and adults, according to a lawsuit filed by Zachary's parents.

In a statement released Monday, the couple said they hoped that filing criminal charges against Lionetti would "prevent another horrific incident like this from happening to someone else."

The child's parents appear to be on the side of having a show trial:

"Those who knowingly violate pool safety codes designed to protect children should be held accountable for their actions," the couple said in the statement. [emphasis added]

We sympathize with the parents' stated desire to keep other children from drowning, but our society has set up a mechanism of civil lawsuits to hold people accountable for their actions and with liability insurance to cover the risks of making mistakes.

What about the parents' accountability?  Swimming pools are known to be dangerous; their own lawsuit says so.  Why was their child swimming without adult supervision?  Why weren't the parents there to shut off the pump?

Weren't they themselves guilty of contributory negligence?  Maybe Lionetti should sue them?

The key to the criminal charges is found in the parent's phrase, "knowingly violate."  To convict the pool installer of a crime, the prosecutor must show that he knew that the pool had not been installed properly and that he knew that an improper installation was a crime.

Criminal law offers the "insanity defense;" insane people are believed not to realize that what they do is wrong. If they don't know it's wrong, the theory goes, they can't have criminal intent.  Assuming for the moment that the drain pump was installed wrong, if Mr. Lionetti didn't know that it had been installed incorrectly, he's not subject to criminal liability.  He's subject to civil liability, of course, but not criminal.

To make even civil liability stick, the parents would have to prove that the accident was due to the pump being installed improperly instead of being caused by someone such as a child tampering with a properly-installed safety device after the installers had left.

It's hard to imagine that any jury could believe that Mr. Lionetti knew that the pool installation was defective.  He works in Stamford, Connecticut, one of the wealthiest communities in the United States.  The last thing he would want would be to mess up an installation badly enough that it would be talked about in the community and cost him business.

Does anyone expect him to be invited to install another pool again as long as he lives?  His career, business, quite possibly his marriage and his entire life are destroyed; there is no way he would knowingly risk that - and if he would, the insanity defense should be pretty effective.

It looks like a "show trial" to us.  The purpose of the court system is to render justice.  It's not supposed to be used to scare people, "making an example" of someone by meting out an ostentatiously harsh penalty.

Extension of criminal liability represents a very bad tendency in our justice system.  How eager will people be to install pools when they risk going to jail for mistakes which ought to be handled through the longstanding civil court system?  The Connecticut prosecutors are taking us further down the abyss of the Confucian Cycle.

Will Offensicht is a staff writer for and an internationally published author by a different name.  Read other articles by Will Offensicht or other articles on Bureaucracy.
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