David J. Pfahler, 60, is suing for $75,000 over a negligent skier who he claims dislocated his shoulder and caused a rotator cuff tear. Sounds like a standard case of a burgeoning number of ski torts. However, the accused in his case is Scott Swimm, a boy who was seven years old at the time. It is only the latest tort case that will explore the liability of a minor.
According to Pfahler, he was skiing on the afternoon of Jan. 12, 2007 at the Beaver Creek ski resort just west of Vail when hit him a great speed. According to the Swimms, Scott was going slowly and hit Pfahler because he stopped abruptly. They further allege 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.”
Such cases turn on the status of the minor and the character of the activity. While there is an objective standard of reasonableness for all adults under negligence, the common law has long recognized a different standard for children that considers the age, maturity, and experience of the child. One exception, however, is when the child is engaged in an adult activity. In such a case, the child is subject to the adult standard. Thus, if a child hit you with a car, he is treated under the reasonable driver’s standard, not the reasonable child driving a car standard.
Pfahler’s counsel is arguing that in Colorado, skiing is treated as an adult activity and thus the children’s standard does not apply. In such cases, striking a skier from behind is generally viewed as negligent. It is an interesting regional difference on what constitutes an adult activity. In some states, kids are given a great deal of slack in hunting and other activities. Indeed, buck fever cases where kids shoot other hunters or houses are fairly common.
In this case, the outcome will likely turn on the standard, though it is not the type of case that most attorneys expect or want to go to a jury. In the meantime, the Internet community appears to have made the lives of the Pfahler’s a nightmare. They were forced to leave their house over the holidays due to hostile calls and mailings.
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