CHESAPEAKE, Va. — The expectation was that December 19th would be a day of joy for the Toohey family.
Exactly one year ago Tuesday, Rebecca and her husband Peter welcomed to the world their firstborn and only son Bodie Toohey to the world. In the short time since his birth, Bodie had seen the sights of the zoo, the beach and more.
"Bodie was a surprise but a good one," Rebecca Toohey laughed. "He was immediately curious, the first time he saw us his eyes were big open and alert."
Almost as quickly as they said hello, the Bodie's parents unexpectedly said goodbye.
Day Care Decision
With Rebecca and Peter returning to work, they searched for day care options for Bodie. Per the suggestion and recommendation of a family friend, they elected to send Bodie to day care services at "Brooke's Nook Daycare" situated near the Great Bridge East neighborhood in Chesapeake.
Still a ten-week-old infant, Rebecca dropped of Bodie for what she remembers as the second day of services at the facility.
"It was the second day of child care, I dropped him off in the morning. It was a normal day, I dropped him off at the door, went to work, and right after school dismissal I got a text saying he was unresponsive in a swing," Toohey said. "That’s when the rest of the nightmare began.”
According to a newly filed civil wrongful death lawsuit, Bodie was found unresponsive and hospitalized after he was allegedly "left unsupervised for approximately thirty minutes in a mechanical swing without proper support for his head and neck."
Bodie died days later after he was hospitalized from his injuries. The lawsuit goes on to say that an autopsy found Bodie Toohey's cause of death described as "Sudden Unexplained Infant Death Associated with Unsafe Sleep Surface."
The cause of death report has opened up questions for Rebecca about the details that led up to Bodie's death this March.
“Sudden [unexplained] Infant Death syndrome would have to have a contributing factor with it. So the unsafe sleep environment was the swing, to determine it wasn’t sleep alone, there were other determining factors.”
"The whole point of this lawsuit is discovery, to figure out what happened that day. We don’t have many answers, only information we’ve gathered but you don’t get that much until you take legal action. more questions than anything.”
Allegations of negligence and not following state code
The day care owners face wrongful death accusations of negligence and violating the Virginia Consumer Protection Act.
On the day of Bodie's death, Brooke's Nook Daycare allegedly had eleven children at the property. This comes after the Toohey's were "advised there would be no more than a total of four children including Decedent [Bodie] at any one time at the daycare.
The suit goes on to say the day care owners did not provide written notice to the Toohey's that the family day home was not regulated or licensed.
According to the Virginia Department of Education:
"We do not have a currently licensed or regulated program under this name or address, nor has this address or name been licensed or regulated in the past."
The day care owners also allegedly failed to attend to Bodie while he was swinging in the mechanical chair.
The complaint goes on to say that the owner's manual of the mechanical swing advised of dangers stemming from an infant's limited head control.
"Defendants know or should have known -- even without the mechanical swing warning -- of the dangers associated with unsafe sleeping positions for infants," the lawsuit read.
Toohey and representing attorney Jeffrey Brooke are seeking $3 million in damages. As Rebecca told 13News Now, the lawsuit is as much about the discovery process in finding out what happened to him that day.
"If he would have survived, it’s our job as parents to continue that for him which we’ll do. Even if that means our story helps people then that’s what we’ll do, whether it makes us uncomfortable or not," Rebecca said.
Jeffrey Brooke wrote in a statement:
"Their pain only deepened when the family learned that Bodie had been left unattended in a daycare setting with inadequate staffing. The Tooheys later discovered that the swing Bodie was placed in comes with specific warnings about the dangers of leaving a very young infant unattended for long periods of time. As most parents and caregivers know, very young infants have undeveloped neck muscles which allow the infant’s head to tip forward blocking the airway. The medical examiner was forced to conclude that this was a preventable tragedy which arose out of an “unsafe sleep” situation directly caused by the daycare in question.
While this legal action can never undo what happened, the Tooheys take some comfort in dedicating their time, resouces and energy to preventing future such tragedies and to working with groups like “Bodie’s Buddies” to support families who have gone through similar losses."
A man who answered the door at the listed address for Brooke's Nook Daycare did not wish to comment on the story.