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Shehnaz Bhujwala
Shehnaz Bhujwala
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Avalanche of Support for Minor Sued by 60 Year Old Man Injured in Ski Accident

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A 60-year-old man who filed a lawsuit against the family of a 7-year-old boy who collided with him on a ski slope last year near Vail, Colo. has become the target of an media backlash. Attorneys are split as to the minor’s potential liability in the case. The lawsuit seeks $75,000 for medical expenses associated with a dislocated shoulder and rotator cuff injury the man says was caused by the accident. The suit also raises the question of whether minors should be held to the same standard of care as adults on the slopes.

As local weathermen boldly proclaim that the “storm of the century” will descend upon Southern California this weekend, avid skiers and snowboarders eagerly anticipate what the first storm of 2008 will bring: several feet of gloriously fresh, powdered snow to local slopes. But are they also considering the dangers associated with these sports and the duty of care to others?

Ski slopes can accommodate a finite number of people, yet some ski areas admit more than can be handled. This may elevate revenues for ski resorts, but it also increases the danger of skiers colliding with one another. Risks multiply with inadequate slope management: mixing novice and expert skiers on the same trails; not providing signs to warn skiers to slow down because of intersecting trails; not informing the skier that a route labeled easy or intermediate is closed lower down, the only egress being a more demanding slope beyond the skier’s abilities.

While the risk of injury posed by novice skiers who are just learning to navigate the slopes is great, there also seems to be a heightened tolerance among experienced skiers and snowboarders for the novice who comes barreling down the slopes. Certainly, even the most advanced snow bunnies were novices at one point; perhaps this is the reason for the expectation of collisions caused by novices on mixed trails.

Not so, in the case of 7-year-old Scott Swimm, who skied into a 60-year-old David J. Pfahler on a slope near Vail, Colo. The collision occurred the afternoon of Jan. 12, 2006, on a family-friendly slope at the Beaver Creek ski resort just west of Vail. Both agree that Pfahler was downhill from Swimm when the two crashed. Pfahler argues that Scott sped into him, while the Defendant’s family says the child was going slowly and hit Pfahler only because he stopped abruptly. 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.

Pfahler has suffered a backlash due to the media attention on the case, including fielding angry phone calls from strangers outraged by the filing of a lawsuit against a minor. Pfahler’s attorney, Jim Chalat, is surprised by the response. In a recent interview with the LA Times, he stated: “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.”

Pfahler 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 wrote a letter, Chalat told the Times, 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.

The case draws attention to whether minors should be held to the same standard of care as adults on the slopes. USC law professor Gregory Keating says personal-injury lawsuits against children are 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.