Child impaled by branch while on Kootenay ATV ride loses legal case against driver

A Calgary man who was impaled by a tree branch while riding in a side-by-side more than a decade ago when he was a child, has lost a legal battle against the family friend who was driving the ATV.

According to a Mar. 9 B.C. Supreme Court decision, Tanner Delfs was nine years old in 2009 when he was involved in a serious accident while a passenger in an ATV on a family vacation in the Kootenays.

"An accident occurred that resulted in Mr. Delfs becoming impaled by a substantial tree branch that entered his body on his right side just below his rib cage and exited on his left side just below his armpit," Justice Matthew Kirchner said in the decision.

Delfs was taken to Invermere Hospital and then airlifted to Calgary Children’s Hospital.

"He underwent extensive surgery to repair a major gastric laceration, a bowel evisceration, an injury to his left diaphragm, several fractured ribs, a collapsed left lung, and a pneumothorax with multiple lacerations," the decision says. "He was in surgery for many hours."

Delfs spent more than two weeks in hospital and some time in an induced coma.

A decade later Delfs filed a lawsuit against Josh Stricker, who was 15 years old at the time and driving the ATV, as well as his parents Fred and Kim Stricker.

Delfs claimed that Josh was negligent in driving the side-by-side and his parents were negligent in their supervision of the off-road adventure.

"Today, more than 12 years after the accident, Mr. Delfs continues to suffer the effects of the accident," Justice Kirchner said. "Most notably, he suffers from chronic pain in his abdomen and at the entry wound where the branch impaled him. He continues to experience psychological trauma from the event."

The decision says the Delfs and Strickers, both from Calgary, were close family friends and had gone to stay at the Stricker's holiday home near Fairmont Hot Springs.

The lengthy decision goes into details about the events of the day and how Delfs was wearing full safety gear while riding as a passenger in the vehicle.

The decision says it's unclear exactly what took place, but somehow the ATV was brought to a stop and Delfs was impaled on the tree branch.

The decision describes the gruesome details.

"Fred testified that he got back to the scene of the accident he saw the branch sticking out near Tanner’s left armpit and that Tanner’s intestines were in his lap," the decision reads. "Fred testified there was not a lot of blood in the (ATV). He took off his shirt, wrapped Tanner’s intestines in it, and gave that to Tanner to hold."

While Delfs argues Josh and his parents were liable for the incident, Justice Kirchner disagreed.

"The evidence, in this case, does not establish that Josh failed to meet the standard of care required of him as an adult operating an off-road side-by-side ATV," the Justice said.

The Justice did have a lot of sympathy for Delfs.

"Mr. Delfs was the innocent victim of a horrifying accident that has, without question, profoundly affected his life and his future. Through no fault of his own, he endured a dreadful injury at a young and formative age and lived through a painful period of treatment and recovery thereafter. He suffered significant post-traumatic psychological injuries in his youth and he continues to experience these today, albeit at a mild and intermittent level. The branch that tore through him caused severe physical damage that, fortunately, was repaired with surgery but has left Mr. Delfs with physical scars and chronic abdominal pain. Now as an adult, that chronic pain affects his endurance and will likely affect his ability to sustain full-time work," the Justice said.

"However, in my respectful view, the evidence does not establish that the accident that caused these injuries was the result of a negligent act of any of the defendants."

With that, the case against the family was dismissed.

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