On Friday afternoon, almost a year after 3-year-old Henry Bowman Backer drowned in a Boathouse & Field Club pool, the club pleaded guilty to involuntary manslaughter. The plea was made in Dukes County Superior Court by general manager Scott Anderson on behalf of Boathouse Club, LLC, owner of the Field Club. The club avoided an indictment, and per its plea agreement, received a $100,000 restitution order and five years of probation. Henry’s family is donating the $100,000 to the Red Cross for lifeguard training.
Among the probation terms set forth by Judge Mark Gildea was a requirement that no club lawyer or member or company officer contradict publicly the club’s acceptance of responsibility and the facts the club accepted as true.
Right around the close of proceedings Friday, the club broadcast information that could be construed as contradictory.
An email obtained by The Times that is signed by “The Boathouse & Field Club Board and Management Team” with a subject heading “Important Message from The Club” describes the death of Henry Bowman Backer in terms that are more euphemistic than how it was characterized in court. The email describes Henry’s death as a “terrible accident” or simply an “accident.” The email is date-stamped “June 10, 2022, at 12:46:55 PM MDT.” MDT in such a context typically stands for Mountain Daylight Time, a time zone two hours behind the Eastern Daylight Time governing Massachusetts. Based on that time stamp, which equates to 2:46:55 pm in Massachusetts, the email appears to have been sent approximately as the court proceedings concluded in Edgartown on Friday.
In a telephone conversation with The Times on Monday, Cape and Islands District Attorney Michael O’Keefe said, “[They] would have been better off if the word incident had been used, instead of accident.”
O’Keefe said he was unsurprised a corporation might try to “gloss” or put the best light for itself on such a situation. He also said, “It is apparent in the body of the letter that they accepted some responsibility for what occurred, and that’s a good thing.”
O’Keefe said the letter has been referred to the court, and it will be up to the probation department or the court to determine if there has been a violation. O’Keefe said only in an extraordinary instance would his office be called in to assist in such a matter.
The drowning of 3-year-old Henry wasn’t described as an accident in court.
A statement of facts read by the prosecution illustrated many club failures, later described as “wanton or reckless conduct,” which led to Henry’s death, including the failure to ensure the little boy, who didn’t know how to swim, wore his floaties. Cape and Islands Assistant District Attorney Elizabeth Sweeney told the court that on July 26, 2021, a photograph taken of Henry “approximately 10 minutes before the first 911 call” showed him not wearing floaties. Henry was found floating face-down shortly thereafter. Sweeney said a club employee told State Police that a flotation device should have “1,000 percent” been placed on Henry, while another employee said it was the 3-year-old’s responsibility to put on his floaties.
Henry’s parents, Stephen and Ellie Backer, gave a victim impact statement on video which included stances on what the incident was and wasn’t. This video was shown in the courtroom. The video was primarily a montage of family moments with Henry. However, at different points in the video the Backers made it clear they would not abide euphemisms for what happened to their son.
“Everyone in this courtroom and, as importantly, this community, should understand that this was not some tragic accident,” Ellie Backer said in the video. “It was a crime. Manslaughter. That’s a felony. The Field Club has admitted that it is guilty not just of negligence, but of wanton and reckless conduct causing the death of our child. The Field Club knowingly created the circumstances that turned its pool into a crime scene where our boy drowned.”
Stephen Backer said in the video his son “was killed by the Edgartown Field Club.”
In an explanation of what was being leveled at the Field Club, “wanton or reckless conduct,” Judge Gildea never used the word accident.
He said “involuntary manslaughter caused by wanton or reckless conduct. Wanton or reckless conduct,” he continued. “is intentional conduct that created a high degree of likelihood that substantial harm would result in a person. Wanton or reckless conduct usually involves an affirmative act. An omission or failure to act may constitute wanton or reckless conduct where the defendant has a duty to act. I find that there is a factual basis in the evidence that has been summarized by the commonwealth for a finding of wanton or reckless conduct through the acts of the Field Club. Specifically, the act of leaving Henry, a 3½-year-old child, unattended in the pool. And also through the decision not to assign counselors to watch a specific child such as Henry. The summary of evidence from the commonwealth also shows that there were one or more employees who acted or failed to take acts in disregard of the high probability of harm to others. So that their acts were wanton and reckless.”
Judge Gildea further noted that a counselor who was playing with Henry and two girls departed with those girls to fetch swim goggles, and left Henry alone.
“There was the failure of an employee who did not put Henry’s floaties on — that Henry walked around with, clipped to his little backpack,” Judge Gildea said. “There’s an employee who told a trooper that it was the 3-year-old’s responsibility to remember to wear his floaties.”
Judge Gildea also said a counselor failed to stand at a white line which marked the deep end of the pool Henry was in, and that management failed to have a float line to signify the boundary of the deep end.
Judge Gildea found the Field Club and its employees had a “duty of care” to Henry, and that the club and its employees “created a situation that posed a grave risk of death or serious injury to Henry.”
Judge Gildea found that wanton or reckless conduct caused Henry’s death.
Judge Gildea accepted the Field Club’s guilty plea, as did Michael Trudeau on behalf of the Cape and Islands District Attorney’s Office.
Ahead of accepting the plea, Judge Gildea asked general manager Anderson to confirm the facts presented to the court were accurate. Anderson, who was under oath, acknowledged they were. Anderson further acknowledged the Field Club was satisfied with its legal representation and that the club would freely plead guilty.
During sentencing, Judge Gildea explained that the club wasn’t permitted to say anything counter to the facts presented in court, facts that were acknowledged in court by the club to be true.
“The Boathouse Club, LLC,” the judge said, “doing business as the Field Club, shall not through current or future attorneys, members, directors, officers, employees, agents, affiliated entities … or any other person authorized by the defendant to speak on its behalf, make any public statement, in litigation or otherwise, contradicting the acceptance of responsibility by the defendant set forth in the statement of facts admitted to by the Boathouse Club LLC during the guilty plea colloquy that took place today. Any such contradictory statement will constitute violation of the terms and conditions. The defendant … will be subject to proceedings for a violation of probation.”
On Monday, club attorney David Apfel told The Times he wasn’t immediately available to respond to an email seeking comment.
In a statement to The Times sent on Monday, the club wrote, “This past year has been an extremely trying time for a family that has suffered an unthinkable loss and a Club community that has been shaken by this tragedy. The Club has accepted responsibility and is further strengthening our safety protocols with the following actions to ensure an incident like this never happens again:
- Partnered with a specialized aquatics management company
- Created new positions of aquatics director and head lifeguard
- Increased the number of lifeguards on duty
- Required swim tests for all children 12 and under
- Implemented a sign-in program that requires children to always be accompanied by parents or guardians at the family pool
“We realize that nothing we can say or do will alleviate the awful grief the family has endured. We are hopeful, however, that our acceptance of responsibility as well as the steps we have taken will provide the family with some small measure of peace, and reassure them and all concerned that we have learned the hard lessons of this profound tragedy.”
Attorney David Meier, who represents the Backers, didn’t respond to voice messages seeking comment.
In its Friday email blast to club members, the club indicated it hired a law firm to conduct its own investigation. The club apologized for not “communicating sooner about the tragedy” and called it both a “horrific loss” and an “accident.”
The full text of the email is as follows:
“As most of you are aware, our Club was involved in a terrible accident last summer involving
Henry Bowman Backer, the 3-year-old grandson of one of our members, who drowned in the pool at the Field Club while attending the Kids’ Club. On a very human level, it is hard to imagine a more horrible event taking place within any family, or the grief that Henry’s parents and other family members have experienced.
“We apologize to all of you, our members, for not having communicated sooner about the tragedy, and what has been done in response to it. It has not been easy to remain silent. But, as we are sure you will understand, we needed to do so as we worked through many highly sensitive and confidential legal issues, including some that involved the privacy rights of Club employees who were working on the day of the tragedy.
“We recognize that our silence has inevitably raised questions about the legal and financial consequences of the accident. We are now able to report that we have settled all legal issues with Henry’s family related to the tragedy, and have done so in a way that will strengthen the Club going forward, while at the same time hopefully giving some small measure of peace to Henry’s family.
“Beginning the day of the accident, and continuing through much of the off-season, local and state agencies, including law enforcement, conducted a comprehensive investigation into the chain of events that resulted in the tragedy. At the same time, we retained a highly regarded Boston law firm — Goodwin Procter, LLP — to conduct an independent investigation so we could understand what went wrong and allow us to make the necessary changes to ensure that nothing like this tragedy would ever happen again at the Club.
“Based on what we learned from Goodwin Procter and from local and state investigatory agencies, we initiated discussions with counsel for Henry’s family to try to achieve a resolution of all potential legal matters, and to try to spare all concerned from what could have otherwise involved years of litigation and caused irreparable harm not just to the Club but to many individuals. As a result of these discussions, we have now achieved a multifaceted settlement.
As you will soon hear in the news, part of overall legal resolution involved the Club waiving indictment, accepting responsibility and accountability, and pleading guilty to a charge of involuntary manslaughter. We agreed to plead to this charge in part because our own investigation as well as an investigation conducted by the Cape and Islands District Attorney’s Office revealed flaws in Club procedures related to the Kids’ Club, as well as serious errors by some of our summer staff. As a result of the Club’s agreement to plead guilty, no individual will be charged with a crime.
“In conjunction with the plea, we have also reached a comprehensive and permanent settlement with Henry’s family. This settlement will, hopefully, help Henry’s family as it attempts to heal from this horrific loss, while also doing honor to Henry’s life and memory. As part of the settlement with the family, no individual associated with the Club will face liability related to the tragedy.
As part of the resolution of the District Attorney’s investigation and the settlement with Henry’s family, the Club has agreed to implement operational changes for its children’s programs, as well as a variety of water safety precautions, all designed to ensure no event like this will ever happen again. We will provide more detail on these changes in communications over the coming weeks.
“The Board of Governors and the Management team of the Club have learned the hard lessons of this profound tragedy. We believe the overall resolution we have achieved will not only improve our children’s programs but ensure a stronger and safer recreational experience for all Club members for years to come.
“The Boathouse & Field Club Board and Management Team.”