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May 20, 2008 — An Eagle-Vail woman whose 8-year-old son is facing a $75,000 federal lawsuit stemming from a ski accident at Beaver Creek last year says such litigation is ruining the sport and is vowing to fight to change the Colorado Ski Safety Act to exempt children under 10.
Susan Swimm's son, Scott, and husband, Robb, were sued in December by 60-year-old David Pfahler, of Allentown, Pa., who alleges Scott skied into him from behind at a high rate of speed, causing him to crash and injure his shoulder. Pfahler and his wife are seeking medical costs, lost vacation and other damages.
The Swimm's don't deny Scott, 7 at the time, accidentally collided with Pfahler while trying to pass him on a relatively flat ski trail known as a catwalk, but they do deny he was traveling at a high rate of speed and contend the collision wasn't forceful enough to cause serious injury.
"In our case, we just had a little boy who was passing a man skiing and the man never saw the child and turned, but because Scott was the uphill skier, all of a sudden, that is sufficient enough evidence to slap a $75,000 federal lawsuit on the child," Susan Swimm said.
Pfahler's Denver attorney, Jim Chalat of Chalat Hatten & Koupal, said the national outrage the case has stirred is unjustified because it was a very clear violation under the Colorado Ski Safety Act.
"The Colorado Ski Safety statute specifically provides that skiers have to ski in control, look where they're going and avoid people and objects below them," Chalat said. "It doesn't matter if you're 8, 18 or 80, you still have that same duty of care."
Passed by the Legislature in 1979 and amended in 1990, the Colorado Ski Safety Act is designed to protect ski areas from frivolous civil suits filed by people injured while assuming the inherent risks of a rigorous outdoor sport in highly changeable weather and snow conditions.
Chalat cites the case of Doering versus Copper Mountain, in which a brother and sister ages 6 and 4 were badly injured while sledding at Copper Mountain ski area. Their family sued the ski area for negligence, but the courts found that the children had an obligation under the Colorado Ski Safety Act to sled in control and watch out for objects below them. The suit was denied.
Chalat said that same duty of care applies in skier collision cases. But the Swimms argue children should not have the same duty of care as adults.
"What my husband and I are actually focusing on is trying to get skier legislation changed so that children under the age of 10 are exempt from the Ski Safety Act, because why do we expect our 8-year-old children to be held to the same standard as you and I?" Swimm said.
Swimm said she and her husband are awaiting the conclusion of their case, which is headed to mediation in U.S. District Court in Denver in July, before beginning a vigorous campaign, including appealing to state lawmakers, to change the Colorado Ski Safety Act.
A settlement in the case is covered under the Swimms' homeowner's insurance, but Susan Swimm said they've refused to sign the settlement because of a clause asking them to sign away Scott's right to sue Pfahler when Scott turns 18.
Chalat said there are about 50 skier-collision lawsuits filed each year in Colorado, but that cases in which children cause an injury are rare. More typically, he said, children are the victims. Other sports and activities, Chalat said, don't have as high a standard of care for children as alpine skiing.
"There are a lot of activities in which children engage in which they have a diminished standard of care," Chalat said. "Skiing is not one of them. (Skiing is) no different than if you put a 16-year-old behind a wheel [of a car]. You put a 16-year-old on a bicycle or in another circumstance, then you might get a diminished standard of care, but behind a wheel, they're subject to adult standards."
Susan Swimm thinks that makes no sense because children typically don't have the same level of awareness, skill or coordination as adults, nor do they think defensively in terms of maintaining spatial separation.
"Why do we expect children to be held to the same standards and accountability as adults?" Swimm said. "It's ruining skiing. By doing what they've done, they're taking away the freedom of a child who's learning a sport. So let's just keep our children locked up safely in the living room with their video games and their television where nobody can do them harm and they can't harm anyone. Is that what we want to do?"
Susan Swimm said this case will likely open the floodgates to similar lawsuits in the future. And Chalat said skier-collision lawsuits are up in the last decade, but not necessarily because of more carnage on the slopes.
"I think [the number of cases is] up some because there's a heightened awareness that if you run somebody down, that if you get run down or someone in your family is run down by an out-of-control skier who's not watching where they're going, that there's a claim to be made," Chalat said.
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