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Boone hotel executive charged in Best Western deaths

By Elizabeth Leland, Gavin Off and Rick Rothacker
eleland@charlotteobserver.com

BOONE A business executive who managed the Best Western was indicted Wednesday on charges of involuntary manslaughter in the deaths last year of three hotel guests poisoned by carbon monoxide.

A grand jury returned the three counts against Damon Mallatere, president of Appalachian Hospitality Management. The jury also indicted Mallatere on one additional count of assault inflicting serious bodily injury on another hotel guest who was poisoned but survived.

Police and prosecutors ended a news briefing without discussing the indictments, leaving many unanswered questions. Though Mallatere is the only person charged, an Observer investigation last year uncovered multiple missteps that contributed to the tragedies in the hotel’s Room 225.

Investigators have determined that carbon monoxide from the swimming pool water heater seeped up from a corroded exhaust pipe into the room, killing Daryl and Shirley Jenkins of Washington state in April and 11-year-old Jeffrey Williams of York County, S.C., in June. Jeffrey’s mother, Jeannie, suffered serious injuries.

It’s uncommon for executives to face criminal charges stemming from deaths on business property, legal experts say. But they were not surprised no public officials were indicted. Failure to do your job properly, they said, does not generally meet the elements of involuntary manslaughter – which requires that someone acted recklessly and with disregard for the consequences.

Mallatere’s attorney said in a statement that the 50-year-old businessman is “extremely disappointed” that authorities chose to press charges against him, instead of a firm he considers more culpable – the gas company that converted the pool heater from propane to natural gas.

“It appears the conversion was not properly performed, and this led directly to extremely high levels of carbon monoxide being produced by the pool heater,” attorney Paul Culpepper of Hickory said.

Culpepper said Appalachian Hospitality discovered other appliances at other hotels were also improperly installed, and he suspects there may be problems at other businesses in Boone.

“The police department knows about this,” he said, “and nobody’s made any warning to the public.”

Contacted later, police Capt. Andy Le Beau said he has relayed the information to town inspectors, and he believes they are checking for potential problems.

Families react

In a statement, the Williams family said it hopes the criminal case “will serve as a staunch reminder for future generations of decision-makers in similar cases that the public’s safety is of paramount concern.” The family said it wants to make certain no other family goes through “this same needless and absolutely avoidable tragedy.”

The family blamed Jeffrey’s death and Jeannie’s injuries on the way the pool heating system was designed, installed, inspected and repaired. They also cited delays and failures in the initial investigation into Daryl and Shirley Jenkins’ deaths.

An attorney for the Jenkinses said the family was pleased with the grand jury’s action, but would have no further comment.

The grand jury heard testimony for most of the day Wednesday, and the district attorney’s office made the announcement around 5:30 p.m.

“The charge is merely an accusation,” chief prosecutor Britt Springer said. “I want to be clear on this one. The defendant is presumed innocent until and unless proven guilty in a court of law.”

Multiple problems at hotel

Mallatere came to Boone in 1988, according to a post on his Facebook page, and previously attended Isothermal Community College in Spindale, according to the school.

He formed Appalachian Hospitality Management in 2007 and managed hotels once owned by his late partner, Boone hotelier Ashok Patel. At the time of the deaths, Mallatere ran the Best Western on U.S. 421 and four other hotels in Boone. On Jan. 1, Hotel Equities, an Atlanta-based company, took over.

Experts say problems with the pool heating system may date back to 2000 when the hotel was designed and built with the exhaust pipe running horizontally across the pool room.

Then, in a move that an expert said was risky, maintenance workers in 2011 replaced the existing heater with a used pool heater from another hotel operated by Appalachian Hospitality. The employees were not licensed to do the work, and did not get a permit or an inspection, in violation of the North Carolina building code.

Next, in February 2012, Appalachian Hospitality hired Independence Oil and Gas to convert that old pool heater from propane to natural gas. The contract required Independence to take out permits, test systems and install new equipment if the appliances could not be converted, according to a contract provided by the management company.

Another report provided by Appalachian Hospitality shows the gas conversion of the swimming pool heater passed the town’s inspection.

But some expert investigators have determined that the system was improperly converted, and it was releasing exorbitantly high levels of carbon monoxide.

Police investigators discovered that the exhaust pipe was riddled with holes due to corrosion and that some of the fittings were jerry-rigged. The pipe ran directly beneath Room 225.

It would take two deadly events in the room and multiple missteps by authorities before the problems became publicly known.

Deaths in Room 225

The first deaths came on April 16. Daryl and Shirley Jenkins were visiting Boone from Longview, Wash., and died on their second night at the Best Western. Though there was no evidence of foul play, some authorities assumed they suffered heart attacks. Daryl was 73; Shirley, 72.

Their family members immediately suspected carbon monoxide poisoning. But firefighters at the scene said they did not test for carbon monoxide and did not find any obvious hazards in the room.

Dr. Brent Hall, the medical examiner, noted signs of heart disease during his autopsies of the Jenkinses, but not of carbon monoxide poisoning. Hall did ask the state to test the Jenkinses’ blood for carbon monoxide, among other toxins, but he did not ask that the tests be expedited.

Weeks passed without further investigation. The Jenkins family grew increasingly frustrated.

It was not until June 1 that the state lab finally tested Shirley’s blood and found lethal levels of carbon monoxide. The lab said it emailed the results to Hall on June 3.

Four days later, before the results were made public, Jeannie and Jeffrey Williams checked into Room 225, which had recently been reopened to guests. Jeffrey died that night and Jeannie suffered debilitating injuries.

Officials with the N.C. Department of Health and Human Services, which oversees the medical examiner system, have said they do not believe any state employee erred in investigating the deaths. They said Hall is an appointee of the Office of the Chief Medical Examiner, not a state employee.

On Wednesday, DHHS Communications Director Ricky Diaz issued a statement saying the department is working to enhance the medical examiner system.

“Whenever there is tragedy, there are lessons learned,” Diaz said.

Other liability?

Hall has been faulted for not alerting the public to a potential health hazard. In June, he resigned his post as medical examiner for Watauga and surrounding counties, and has not spoken publicly about what happened.

The Boone Fire Department also was criticized for not testing Room 225 for carbon monoxide after Daryl and Shirley Jenkins died, as wasthe Office of the Chief Medical Examiner in Raleigh for not completing toxicology tests sooner.

When public officials do not do their jobs properly, the negligence generally does not rise to the level of criminal conduct. So it didn’t surprise legal experts that no authorities were charged. To convict anyone of involuntary manslaughter, a jury would have to find that the person acted recklessly and with disregard for the consequences, which can be difficult to prove.

They said the Williams and Jenkins families are more likely to prevail in civil lawsuits where the standard for negligence is lower. The families have up to two years to file wrongful death lawsuits. Possible targets include the hotel, Appalachian Hospitality Management, the Best Western chain, Boone authorities, as well as any person or company that worked on the swimming pool heating system. The Williams family also wants to hold the medical examiner system accountable.

The state has already taken some regulatory action.

The State Board of Examiners of Plumbing, Heating & Fire Sprinkler Contractors is seeking injunctions against three employees of Appalachian Hospitality who performed unregulated maintenance, specifically by installing the “swimming pool heater with associated exhaust piping connections.”

The board also will consider disciplinary action against Dale Thomas Winkler, a licensed contractor who worked on the system. At a private conference last month, no resolution was reached in the case so it will now go before the full board in a public hearing. A date for the hearing has not been set.

Defining ‘reckless’

Though legal experts said it’s uncommon for a business owner such as Mallatere to face criminal charges, there are two well-publicized precedents in which business owners were charged: A fire at the Cocoanut Grove Night Club in Boston in 1942, where 492 people died. And a fire in 2003 at The Station night club in West Warwick, R.I., where 100 people died and hundreds more were injured.

“It doesn’t require evil intent,” said John Barylick, a lawyer in the Rhode Island case. “It just requires that you were stunningly careless.”

Charlotte attorney Jim Cooney said generally such cases are resolved through civil court, not criminal.

“Typically speaking, for lack of a better way of putting it, stuff happens,” Cooney said. “It’s got to be more than you just screwed up. It’s got to be you screwed up and you knew you screwed up and you didn’t care. That’s what we define as reckless.” Staff writers Ames Alexander and Fred Clasen-Kelley and researcher Maria David contributed.

Leland: 704-358-5074

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