A 60-year-old man's suit against an 8-year-old boy over a skiing accident has triggered an avalanche of indignation. But Colorado law appears to allow minors of any age to be sued for negligence on the slopes.

David Pfahler, a Pennsylvania resident, filed suit Sept. 6, claiming Scott Swimm is liable under the Colorado Ski Safety Act for the “massive” rotator cuff tear he suffered while skiing on Arrowhead Mountain in the Vail Valley area. Swimm, who was 7 at the time, collided with Pfahler in January 2007 as he allegedly tried to overtake the older skier.

“As the uphill and overtaking skier, defendant Swimm had the primary duty to avoid collision with any person in front of him,” the complaint, which seeks at least $75,000 in damages, says. The boy's father is named as a co-defendant.

The case did not receive any publicity, however, until the Vail Daily newspaper published a story Dec. 20 that quoted Swimm's mother. “Who in the world sues a child?” Susan Swimm protested. “It just boggles my mind every day.”

The story also quoted a law professor as saying that a minor cannot be sued directly in Colorado. And Pfahler, a former teacher who now works for Reader's Digest, was soon being reviled in Internet postings as a “bully,” “leach” and “loser.”

“Pfahler needs to 'get a life' and leave this kid alone,” wrote one Denver Post reader, while another said that “suing an 8-year-old is a new record low for our society.”

Pfahler attorney James H. Chalat (Chalat Hatten, Denver) says his office has received angry phone calls and e-mails. But he insists that “There is nothing unusual about this case.”

“The settled law in Colorado is that children have co-equal rights and duties as adults under the Colorado Ski Safety Act,” he tells On Point. “Because Scott is by law responsible, the proper procedural technique is to sue him.”

In Doering v. Copper Mountain, 259 F.3d 1202 (2001), the 10th U.S. Circuit Court of Appeals ruled that two children, ages 4 and 6, who were injured in a sledding accident could be found contributorily negligent.

The Ski Safety Act applies to “any person,” the court noted, and the Legislature clearly intended “to abrogate the common law when it conflicts with the Act.” Common law considers children under the age of 7 incapable of contributory negligence.

“Our experience is that most matters such as this are settled by the family of the involved child without involvement of counsel,” Chalat says.

The Swimms have filed an answer to the complaint, saying Scott “was faced with a sudden emergency and is therefore not liable” for Pfahler's injuries and any recovery must be reduced by the plaintiff's own negligence.

Robb Swimm, who witnessed the collision, has said his son was skiing slowly and in control when Pfahler, who was a few feet in front of him, turned and stopped. As Scott's skis passed over Pfahler's, the two got tangled up and fell.

“If he [Pfahler] gets anything, I'm going to be pretty upset,” the elder Swimm told the Denver Post. Scott is scheduled to testify at a deposition Jan. 7.

By Matthew Heller
12/28/07