Buffeted by a media backlash, an injured skier suing an 8-year-old is seeking a gag order in the case to protect him from further public humiliation and address the “real threat” that he will not receive a fair trial.

David Pfahler has experienced what his attorney called “an electronic tar and feathering” since a Colorado newspaper published a story about his case. He and his wife sued Scott Swimm in September over a collision on a Vail Valley ski slope that injured his shoulder.

Gag orders are rarely granted in civil cases, but Pfahler argues one is warranted in his case because the media comments of Swimm's parents “combined with media commentary, and uninformed legal opinions as to the liability of minors on Colorado ski slopes, have caused the public to vilify and humiliate the plaintiffs.”

The Denver Post has quoted Swimm's mother saying of Pfahler, “It’s ludicrous. This man should be drawn and quartered.”

“It is positively inflammatory for a party to suggest that another party should be violently murdered for filing a civil claim,” Pfahler says in his motion for a gag order.

Stories about the case in the Denver newspapers, he notes, have generated “hundreds of reader comments ... almost all of which are negatively biased against the Pfahlers” and those postings,

in which readers (potential jurors) decry one party’s position before trial, are specific evidence that there is a reasonable likelihood that the ongoing media blitz poses a real threat that the Pfahlers will be deprived of a just resolution of their dispute.

The motion also provides a detailed account of the fateful collision, attaching the ski patrol's report as an exhibit.

“Pfahler never saw what was coming,” the motion says. “All he knows is that his legs were suddenly knocked out from under him, and that he was upended by the minor defendant who hit him at high speed from behind.”

The plaintiff also denies the Swimms' claim that he grabbed Scott by the ankles after they collided. “Mr. Pfahler was suffering at the time with what was later diagnosed as a 'massive rotator cuff tear,'” he says.

Some media accounts have said minors in Colorado are immune from civil suits. But Pfahler insists it is “settled Colorado law that the age of Scott Swimm is immaterial to his liability” and that his claims are “neither frivolous, groundless nor baseless.”

The Swimms have until Jan. 28 to respond to the motion. In the collision report, Scott's father says Pfahler "cut in front of my son. He was unable to stop in time."

By Matthew Heller
1/17/08