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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.
5 Comments on "Parents of boy sued in Beaver Creek ski accident look to change law"
Sarah — April 12, 2009
How sad is this!! Was the old man the class bully as a child. He's just picking on this poor little boy. And honestly, what is this teaching this little boy? What happened to forgiveness? Suck it up old man, that's the risk you take when you're out on the slopes, you know darn well that there is always a chance someone may lose control and run in to you. If you can't deal with it, stay at home, or sit in the lodge. I agree that all skiers need to ensure they are in control and aware of others around them while skiing. But no ones perfect, and we have all run into someone at one point or another. With all due respect, old man, GROW UP! Lets hope you never run into someone accidentally while skiing, if you do I hope they sue for all you've got. What goes around, comes around!
randy — April 15, 2009
Sad- but the hills are full of those that do not follow the skiers code. It is law, and parents need to teach children to obey and patrol need to enforce. I have seen too many get hit from behind.
Tony — April 21, 2009
The US Chamber Of Commerce is featuring this story as an example of sue happy lawyers gone amok. Apparently it doesn't matter to the US Chamber that the State of Colorado has had this law for 18 years requiring all skiers, regardless of age, to observe the skiers code. But of course the boy's parents somehow think their kid is special and should be exmpt from the results of his conduct. The bottom line is the US Chamber of Commerce hates lawyers.
Res ipsa loquitur — April 25, 2009
His parents are either ignorant or deliberately misleading people by using the term "$75,000 federal lawsuit". The amount on the complaint is going to be in excess of $75k so the plaintiff can get diversity jurisdiction. This is the type of case where it probably makes a lot of sense to go for diversity jurisdiction- the local Colorado courts probably aren't too friendly towards plaintiffs in ski collisions. The fact that they put $75k in the complaint is just a jurisdictional thing- it has nothing to do with how much the plaintiff might eventually get awarded. I understand that the average person might not realize this, but if they should at least bother to learn the facts before going on crusades.
Steve S — April 27, 2009
Know the code. Knuckledraggers who say "suck it up old man" and "we all run into someone once in a while" are part of the problem. Parents need to spend a lot of time instilling safety conciousness with their kids. I have 4 kids that ski 40 -plus days a year. I continually tell them of the responsibilities of skiing/boarding. Knock on wood, none of us has ever run into someone. I've been hit by idiots like Sarah who have absolutely no clue of the rules of the road. My kids have almost been hit. If some idiot ran into my kids or wife they might find a pole sticking out of their eye socket. If the guy is truly injured he should get his medical bills paid, nothing more.
