Dead boy's parents pursue legal action

Son received inadequate treatment after being hit by shrapnel, family says

By Jeremy Pawloski | The Olympian • Published September 24, 2008

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The parents of an 8-year-old who died after his grandfather fired a cannon that exploded at an outdoor Fourth of July party near Rochester in 2007 have told Thurston County that they intend to sue, and damages might exceed $47 million.

Devan Vyborny, 8, died of blood loss after shrapnel struck him in the chest and severed his aorta, Thurston County Coroner Gary Warnock said in 2007. The aorta is the artery that carries blood from the heart to smaller arteries.

The tort claim filed Monday with Thurston County Risk Management claims that Thurston County Medic One personnel were negligent and "appeared overwhelmed by the situation, and they did not know which medical devices to use on Devan."

"Furthermore, Medic One personnel did not transport Devan to the hospital in an urgent manner," the tort claim states. "In fact witnesses observed Medic One personnel take an unnecessary amount of time to depart the scene and drove at an exceptionally slow rate of speed when they finally began to transport Devan to the hospital."

A tort claim is a civil legal action.

The tort claim says that Thurston County 9-1-1 operators canceled an airlift transport for the child.

"It is specifically alleged that Thurston County negligently failed to properly train its Medic One personnel and its 9-1-1 call center operators," it states.

Attorney Ron Gomes, who is representing the Vyborny family, said that there are many unanswered questions about the emergency response to Vyborny's injuries that he hopes to learn about through the discovery process.

Officials with Medic One and Thurston County's 9-1-1 dispatch center referred questions to Thurston County spokesman John Tennis, who said it was too early to discuss specific allegations in the tort claim.

Damages "may exceed $47 million," according to the tort claim, which mentions losses to Devan Vyborny's estate, as well as the emotional distress and loss of companionship of the boy's family, including his parents and siblings.

In 2007, Warnock described the shrapnel that struck Vyborny as "a very small piece."

Littlerock Deputy Fire Chief Gary Kerker said the response couldn't have been more than a couple of minutes.

Kerker said in 2007 that when he arrived on the scene, Devan "wasn't talking and wasn't moving."

Kerker said during the 2007 interview that Devan was given oxygen and transported to Providence St. Peter Hospital in Olympia. The boy died at the hospital.

"I know we did everything we could," he said. "At one time, there were eight people working on him."

Neighbor and retired firefighter John Burton said in 2007 that he heard the explosion, and helped Devan afterward. Burton said the wound didn't appear to be life-threatening, but "wounds can be deceiving."

According to the Thurston County Sheriff's Office:

The grandfather has said he thinks metal fatigue contributed to the cannon malfunctioning during a party at his home in the 6800 block of 105th Avenue.

Devan was standing about 100 feet behind the metal cannon when it exploded.

He was the only one struck of the 16 people, including seven children, who were at the party. Shrapnel flew more than 200 feet when the cannon exploded.

Fifteen people, including seven children, were at the home, but no one else was hit.

The cannon was estimated to be about 18 inches long, Thurston County Chief Criminal Deputy James Chamberlain has said.

Jeremy Pawloski covers public safety for The Olympian. He can be reached at 360-754-5465 or jpawloski@theolympian.com.