Family sues homeowner over toddler’s death in Marco swimming pool

By AISLING SWIFT
Naples Daily News
Posted May 19, 2010 at 1:51 p.m.

MARCO ISLAND - The mother of a 2-year-old girl who drowned in a Marco Island couple's pool last summer is suing the homeowners, alleging a defective door handle allowed the curious toddler to walk out of a bathroom and into the pool.

Sylvia Tuma of Pembroke Pines contends the Seagrape Drive home of Horacio and Blanca Leyva was unsafe as a vacation rental for a family with children because the bathroom door leading to their pool couldn't be locked from inside, which led to Natalia's death on Aug. 13, five days after she fell in.

The home, built 13 years ago, predates construction requirements that require pool fences and door alarms.

Tuma's lawsuit, filed recently in Collier Circuit Court, alleges the couple should have warned Tuma and her family about the dangerous conditions and didn't replace the defective lock or place an additional lock or bolt on the door.

Horacio Leyva, 74, a Miami surgeon, and his wife couldn't be reached for comment.

The complaint accuses them of negligence and breaching their duty of care to Sylvia Tuma, 28, who represents her daughter's estate. It alleges the Leyvas didn't have a fence around their pool and didn't inspect their property to ensure it was safe and free of hidden dangers before renting it to the Tuma family.

"We are alleging that's what the standard of care is," attorney Manuel Dobrinsky of Miami said of a fence, which is recommended by the federal Consumer Product Safety Commission, the U.S. government and the state.

The home was built in 1997, before Marco Island became a city, so there were no requirements for alarms on doors or windows leading to swimming pools. The home also predates similar requirements under county building codes, and a state law requiring all homes constructed after 2001 to have a 4-foot-high fence around a pool, and alarms on doors leading to them.

Dobrinsky, who is lead counsel with attorney Sharon Hanlon of Naples, said they sued because they were unable to reach a settlement with the homeowners' insurance company, American Strategic Insurance Underwriters.

"This was a serious accident, a very tragic death," Hanlon said.

Dobrinsky said they're uncertain if the door handle was broken or made that way, but haven't yet been given permission to inspect the property.

A Marco Island police report said Natalia had a "very daring personality" and was just learning to swim by using arm floats, so she may have been trying to reach some balls the children had left in the pool the night before. But family members had no idea how a patio chair ended up in the pool.

The lawsuit, assigned to Collier Circuit Judge Hugh Hayes, asks the judge to award Tuma and her husband, Nelson, 28, damages for their daughter's wrongful death, the couple's suffering, emotional distress, pain, and loss of enjoyment of life. Lawsuits filed in circuit court seek more than $15,000.

From the Tumas' website

"Our daughter will never be able to give birth, but she did give life," Sylvia Tuma wrote about the girl who loved the color yellow, the Disney Channel and the beach. "Her father and I find comfort in knowing that her short life had immense purpose and that one day we will all be reunited. Natalia has imposed such a life lesson on everyone who knew and loved her. She lives on."

The couple do have one consolation, however. Natalia's death allowed about four others to live, including a Canadian girl who received her heart, Dobrinsky said.

The Tumas have set up a website: nataliasavealifefoundation.com to encourage Hispanics and others to donate organs to save lives and debunk a myth prevalent in the Hispanic community - that doctors would remove organs, rather than trying to save a Hispanic patient's life.

"Natalia was a happy, energetic and beautiful little girl," Sylvia Tuma wrote about her daughter, "Cheeky," on the National Donor Memorial website at http://bit.ly/9vFjnO. "She gave us complete and utter joy for 2 years, 4 months and 21 days."

"Our daughter will never be able to give birth, but she did give life," she wrote about the girl who loved the color yellow, the Disney Channel and the beach. "Her father and I find comfort in knowing that her short life had immense purpose and that one day we will all be reunited. Natalia has imposed such a life lesson on everyone who knew and loved her. She lives on."

Marco police reports, which cite the faulty door handle, give this account:

The Tumas arrived the afternoon of Aug. 8, joining Sylvia Tuma's mother, Gladys Beneito, her nephew and two nieces.

Beneito knew a neighbor, who asked the Leyvas to rent the home to the family as a favor. The family, which included Beneito's sister and husband, stayed at the pool until 10 p.m., with Natalia playing, swimming with arm floats, and jumping in as her grandmother caught her.

Natalia fidgeted all night as she slept in her parents' bed, so after Sylvia Tuma awakened and fed her a bottle of milk at 7:50 a.m., she returned to bed, leaving Natalia watching cartoons as the family packed bags for a day at the beach and cooked breakfast.

Natalia went to wake up the other children, but when she didn't return, Beneito's sister, Irene Robert, searched and found her face down on the bottom of the pool's deep end. She dove in and pulled her onto the deck. She was blue, had no pulse and wasn't breathing.

Beneito, a medical assistant trained in cardiopulmonary resuscitation, began CPR and water came out of the toddler's mouth.

About an hour after returning to bed, Sylvia Tuma was awakened and ran to the lanai. "Please save my baby," Tuma screamed.

A neighbor walking a dog helped a frantic family member tell a 911 dispatcher the intersection and the neighbor's husband took over CPR, instructed by the dispatcher. Officer Hector Diaz arrived and performed CPR, assisted by Officer Matt Goetz, who carried an AED, an automated external defibrillator.

Collier County Emergency Medical Services crews arrived and took the toddler to Physicians Regional Medical Center, where emergency room doctors revived her. She was later flown to Miami Children's Hospital, where doctors declared her brain dead five days later.

An investigation by the state Department of Children and Families determined there was no neglect.

© 2010 Naples Daily News. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Zelman & Hanlon, P.A. Florida Legal Elite 2013 ABA American Bar Association