An 8-year-old boy sued in collision
eagle county correspondent
EAGLE-VAIL ” Eight-year-old Scott Swimm spreads his arms wide when he describes the crash he was in with another skier at Arrowhead Mountain in January.
“We were literally about this far away,” said Scott, an Eagle-Vail resident and third-grader at Eagle County Charter Academy.
Then 7, Scott was skiing slowly and in control when he tried to pass David J. Pfahler, said his father, Robb Swimm, who witnessed the crash.
Almost eight months later, the 8-year-old and his father were named as defendants in a lawsuit alleging that Scott collided with Pfahler at Arrowhead Mountain Jan. 12.
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“It wasn’t a violent collision or anything, Scott just kind of tapped his ski boots,” said Robb Swimm, who has lived in the Vail Valley with his wife, Susan Swimm, for 17 years.
Pfahler, 60, of Allentown, Penn., tore a tendon in his shoulder in the collision and is suing for physical therapy expenses, vacation time and other expenses, according to the lawsuit, filed in U.S. District Court in Colorado.
Pfahler has a season pass and skis often, said Jim Chalat, Pfahler’s Denver-based attorney.
“He’s a very strong recreational skier,” Chalat said.
Scott was skiing ahead of his father on the catwalk Golden Bear when he tried to pass Pfahler on the right, Robb Swimm said.
Pfahler was skiing ahead of Scott and turned into him. Scott, the uphill skier, did not have time to react, Robb Swimm said.
Scott said he was sorry and started to ski away when Pfahler grabbed Scott’s legs, cursed at him and said he would sue him, Robb Swimm said.
“I was really scared,” Scott said.
Pfahler, who declined comment on his attorney’s advice, works in publishing for Reader’s Digest, Chalat said.
“He wants to get back to work,” Chalat said.
Marlene Ambrogio, Pfahler’s wife, is also named as a plaintiff and is seeking damages for “nursing, medical and other services rendered to Mr. Pfahler,” the lawsuit says.
The total value of the Pfahler’s and Ambrogio’s losses are unknown, but they exceed $75,000, the lawsuit says.
The lawsuit says Scott was skiing “recklessly” and at a “high rate of speed.”
Susan Swimm said her 48-pound son could not have been skiing more than 10 mph on the gentle slope.
She said the lawsuit sends the wrong message to children trying to learn the sport: that they cannot make mistakes while skiing.
“Who in the world sues a child?” she said. “It just boggles my mind every day.”
Chalat declined to comment specifically on the case.
“There aren’t any significant policy issues that drive this case,” Chalat said. “It’s a private matter between private parties.”
Scott cannot be sued
When skiers pass other skiers, they need to make sure that the other skiers are aware they’re being passed by shouting or giving them enough room to turn, Avon defense attorney Bruce Carey said.
“If one skier is completely behind the downhill skier, then the downhill skier would be unaware of the uphill skier,” said Carey, who prosecuted the first case of reckless skiing to go to trial in Colorado. “That’s why the burden falls on the uphill skier.”
Carey acknowledged that he has never heard of an 8-year-old being sued in a skiing collision.
Colorado law says a minor cannot be sued, but his or her parents can, said Clare Huntington, associate professor at the University of Colorado Law School.
“This is just a basic rule,” she said.
The court will likely dismiss Scott from the lawsuit, she said.
Robb Swimm said he answered the door when sheriff’s deputies served the papers for the lawsuit to his home ” Scott was at school.
“They said they would return at 4 p.m. and Scott would need to be here to sign the papers,” he said.
Susan Swimm does not think her son did anything wrong and he has been taking ski lessons in the Vail Valley since he was 3 years old.
“They spend a lot of time talking about skier safety with these children,” she said. “It’s drilled into them.”
If the case is settled, Scott and his family won’t have to pay damages because the family has insurance, Robb Swimm said.
Still, Scott Swimm, who will give his version of the collision to lawyers in a federal court in Denver Jan. 7 and 8, doesn’t feel like skiing lately, he said.
“I feel like this guy could be on the mountain and it’ll happen again,” Scott Swimm said.
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