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Skiing accident has snowballed into a public dispute

January 02, 2008|Nicholas Riccardi | Times Staff Writer

DENVER — It started as a generational collision, when a 7-year-old boy skied into a 60-year-old Pennsylvania man on a slope near Vail, Colo.

The elder skier sued the boy's family for more than $75,000 to cover his medical bills, saying he had dislocated his shoulder and suffered a massive rotator cuff tear in the accident.

To many, last winter's snowy run-in has become a symbol of excessive litigation.

The plaintiff, David J. Pfahler, and his wife left their home in Allentown, Pa., this holiday season because they were deluged with angry calls. "We've never seen this kind of attention to a case," said Pfahler's attorney, Jim Chalat. "If you're skiing as Pfahler was, slowly and in control on an intermediate slope, and a 7-, 8-, 9-year-old comes bombing down and crashes into you, the child has a technical responsibility to you."

The young skier's parents, Susan and Robb Swimm, are happy the public shares their outrage. "People are really angry about this, and they should be," she said. "What kind of a message are we sending to our children if we're just going to turn around and sue after an accident on a ski slope?"

The collision occurred the afternoon of Jan. 12, 2007, on a family-friendly slope at the Beaver Creek ski resort just west of Vail. The one thing the two sides agree on is that Pfahler was downhill from Scott Swimm when the two crashed.

Chalat argues that Scott sped into his client. But Scott's family says the child was going slowly and hit Pfahler only because he stopped abruptly.

Susan Swimm said that Scott apologized, but that Pfahler grabbed the child, cursing, and said he would sue. He let up, she said, only when Scott's father skied up.

Chalat called the allegation that his client had cursed and grabbed the child "a total lie." Pfahler, he said, was taken away in an ambulance and had his shoulder reset.

After surgery in March, Pfahler's insurance company recommended that he write to the Swimms to ask for compensation. He penned a polite note, Chalat said, but got no response.

"He felt like he didn't have any recourse except to call lawyers," Chalat said. The Swimm family says they never received a letter. The next they heard of it was in September, when they were served with notice that the suit had been filed.

Susan Swimm said she decided to go public two months later, after Scott, now 8, refused to accompany them on a family ski outing. "He said, 'What if that guy's back there? What if he comes after me again?' "

The Swimms began telling the story to local media outlets. Then Internet postings appeared that urged people to call the Pfahlers at home. Others suggested calls to Pfahler's employer, Reader's Digest, demanding that he be fired.

Gregory Keating, a USC law professor, said personal-injury lawsuits against children were rare but not unheard of. "It does happen," he said.

The key issue is whether children were engaged in an age-appropriate activity. If they were, Keating said, they have a lower standard of responsibility than an adult would, in recognition of their age.

Chalat, whose firm specializes in ski cases, said that under Colorado law, minors have the same ski-safety obligations as adults. When he filed the lawsuit, which names Scott and his father, Chalat said he had no clue that there could be a backlash.

"I didn't anticipate it, and I take full responsibility for it," he said.

Chalat said Pfahler and his wife, who is also a party to the suit, asked him to file a "low-intensity" claim. The case will be heard before a federal magistrate rather than a judge or jury.

Susan Swimm said what's at issue is more than who's legally liable. "The whole point is: Is this morally right? Should we stoop so low as to sue a child for learning a sport?"

nicholas.riccardi@latimes.com

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