04/10/2003 at 01:00 AM EDT
Actress Ursula Karven, the mother of a 4-year-old boy who drowned in Tommy Lee's Malibu pool, testified in Los Angeles Superior Court Wednesday that she would have insisted her son Daniel bring his water wings if she'd known there would be swimming at a birthday party for Lee's son, the Associated Press reports.
Karven and her husband, TV producer James Veres, are suing the former Motley Crue drummer for wrongful death and alleged negligence for not having a lifeguard or anyone available to perform CPR at his June 2001 pool party for his son Brandon (whose mother is Lee's ex-wife, Pamela Anderson).
Karven said she first learned there was swimming when her nanny, Christian Weihs, a German exchange student who went to the party to watch over Daniel and his older brother, returned home without them so he could go to a concert.
Karven said Weihs told her: "Don't worry. They're out of the water now," and that he had turned the boys over to another nanny at the party.
"I told Christian I didn't know there would be swimming and I would have given Daniel his water wings," said Karven, who also testified Daniel was "scared of the water."
"But Christian said the pool part was over and that an animal show, actually a magic show, was to start and then cake, and Daniel loved cake," she said.
Weihs returned to Germany several days after the incident where attorneys for Lee say they have been unable to find him, reports Reuters.
On Tuesday, the first day of testimony, Lee, 40, said that every child at the party was the responsibility of his or her parent or guardian, and that every child at the party had one.