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7-year-old skier sued after skiing over a man's skis

post #1 of 42
Thread Starter 
post #2 of 42

That is pathetic.    What happened to the guy?   Was he seriously injured in the "crash"?

 

It'd be nice to see the other side.

post #3 of 42

I hope that idiot feels real good about himself. I think he should pick on somebody his own size.

 

Karl

post #4 of 42

"The man grabbed Scott"  Sounds like a case of assault.  A little later to react, but maybe time to counter sue.

 

I guess it's just fortunate nobody ever grabbed any my kids; I would have reacted on the spot.

post #5 of 42

can someone find the dudes address so i can go shove a ski pole up his ass?

 

THIS IS BS! The kid knows how to ski at a decent level it seems. he was able to avoid the potential crash and just ran over the dudes skis!

 

If I got sued every time i ran over someones skis in the lift line...

post #6 of 42

I have to agree with Ghost.  Why wasn't this man charged with assault?  This is a PERFECT case of lawsuit abuse.  That is insane.  :(

post #7 of 42

Gee maybe they outta sue the resort for allowing a 7 yearold to ski. Deeper pockets. Maybe try to shut the resort down. I mean, why not? There is money to be made.

post #8 of 42

 

Quote:
Originally Posted by SNPete View Post

Gee maybe they outta sue the resort for allowing a 7 yearold to ski. Deeper pockets. Maybe try to shut the resort down. I mean, why not? There is money to be made.


They will if they can.
 

 

This is a perfect example of why CO needs to change its law.  Wrongheaded legal incentives will lead to results like this.   

 

post #9 of 42

There HAS to be more to this story than what is listed on that website, possibly an altercation between the kid's parent and the d-bag.   No judge would allow a case to go on that long over a scratched pair of skis for fear of being a bigger laughing stock than the judge that allowed the DC lawyer to sue that dry cleaners over the lost pair of pants.  I know it happens, but I'm very suspicious since it isn't disclosed what the settlement was or even what the allegations were. just that the case involved a 7 year old that by the code caused the accident however small (or large?) it was.  Like many point out the story posted supports much better grounds for the kid to sue the d-bag.  Why didn't they?  I'm calling BS on this.

post #10 of 42

BS indeed. 60 yo from Allentown PA. Sounds like he's been TGRed back home and gone into hiding for a while.

 

legalpublication.blogspot.com/2007/12/david-pfahler-sues-8-year-old-scott.html

 

 

 

post #11 of 42
post #12 of 42

Yep. no bs.  The irony is the insurance: most homeowner's/renter's policies cover at least young minors (sometimes not teens)  for negligence claims, so even though Mom & Dad generally aren't directly liable for this type of thing insurance is the "hook" for shaking on the money tree.  & a 7 year old ends up with all the trauma of being a defendant during some of his most formative years.

 

Change the law and even though there will still be people who MIGHT given the chance be willing to put a 7 year old through that, on those facts, they won't be able to. 

 

For some people of course this is still just "part of the cost of doing business" -- at least until it's their kid on that stand.

 

 

post #13 of 42

WTF

post #14 of 42

This got discussed to death a year ago.  For the people who don't want to read through that very long thread:

 

1) The best account seemed to be that the guy got clipped from behind by the kid while on a cat-track, took a nasty fall, and hurt his shoulder pretty badly.  (Torn rotator cuff, needed surgery and months of rehab.)

 

2) He was suing the parents for medical expenses to the tune of ~$75,000.  (Keep in mind this guy needed surgery and months of rehab/PT, so $75K is not a completely crazy number.)  There was some debate over this figure -- it did not include "pain and suffering" or anything punitive/subjective like that, but did include essentially paying his wife to take a couple months off work to take care of him.

 

3) In a lot of cases like this it's actually the insurance company driving the suit, but that was somewhat unclear here.

 

I'm not sure what became of this case -- it may still be ongoing.

 

EDIT: from the blog linked above, it seems the case was settled out of court, but apparently the settlement terms included, um, not discussing the settlement terms.

 

Quote:
Originally Posted by CTKook View Post

Yep. no bs.  The irony is the insurance: most homeowner's/renter's policies cover at least young minors (sometimes not teens)  for negligence claims, so even though Mom & Dad generally aren't directly liable for this type of thing insurance is the "hook" for shaking on the money tree.  & a 7 year old ends up with all the trauma of being a defendant during some of his most formative years.

 

Change the law and even though there will still be people who MIGHT given the chance be willing to put a 7 year old through that, on those facts, they won't be able to. 

 

For some people of course this is still just "part of the cost of doing business" -- at least until it's their kid on that stand.

What law would you change?  Should this guy (or his insurance company) be on the hook for medical bills that were caused by someone else's actions?  The main complaint that seemed to be raised is that the person at fault was only 7.

 

In terms of legal responsibility, it's not too different than if a little kid accidentally broke something expensive in a store.  The parents are on the hook for it.  If they won't pay voluntarily (and/or disagree about the cost), there's going to be a lawsuit.  End of story.


Edited by Matthias99 - 4/28/2009 at 09:24 pm GMT
post #15 of 42

 

Quote:
Originally Posted by Matthias99 View Post

This got discussed to death a year ago.  For the people who don't want to read through that very long thread:

 

1) The best account seemed to be that the guy got clipped from behind by the kid while on a cat-track, took a nasty fall, and hurt his shoulder pretty badly.  (Torn rotator cuff, needed surgery and months of rehab.)

 

2) He was suing the parents for medical expenses to the tune of ~$75,000.  (Keep in mind this guy needed surgery and months of rehab/PT, so $75K is not a completely crazy number.)  There was some debate over this figure -- it did not include "pain and suffering" or anything punitive/subjective like that, but did include essentially paying his wife to take a couple months off work to take care of him.

 

3) In a lot of cases like this it's actually the insurance company driving the suit, but that was somewhat unclear here.

 

I'm not sure what became of this case -- it may still be ongoing.

 

EDIT: from the blog linked above, it seems the case was settled out of court, but apparently the settlement terms included, um, not discussing the settlement terms.

 

What law would you change?  Should this guy (or his insurance company) be on the hook for medical bills that were caused by someone else's actions?  The main complaint that seemed to be raised is that the person at fault was only 7.

 

In terms of legal responsibility, it's not too different than if a little kid accidentally broke something expensive in a store.  The parents are on the hook for it.  If they won't pay voluntarily (and/or disagree about the cost), there's going to be a lawsuit.  End of story.


Edited by Matthias99 - 4/28/2009 at 09:24 pm GMT


Well, you're way off base starting @ parental responsibiltiy and working your way back up. Parents are liable for certain actions of their children such as vandalism and in some cases for failing to supervise children adequately. But barring that they're generally not responsible for simple "negligence" on the part of their child. The law I would change is the statute in CO that allowed this case to be brought without it summarily being thrown out of court. Preferably the the statute and related rules could also be changed so that the plaintiff would pay the legal fees of the person he sues in this type of fact pattern, and his attorney be subject to sanctions, as well. (To be clear this lawsuit was appropriately brought under existing law, I'm not saying it was frivolous under existing standards in that state.) Skiers hit each other and/or spontaneously fall down and hurt themselves. Good kids run into things. If you want to be able to sue a kid who collides with you unintentionally in the course of play you really should take up knitting. No offense to any actually knitters out there.
post #16 of 42

In cycling, riders absolutely destroy each other all the time, usually by accident and with no negligence, but sometimes because of lousy riding in a group, lapping wheels, erratic speed and braking, swerving, and so on, and I have never  heard of one cyclist suing another. In fact, in cycling it is considered un-cool to even discuss the accident with respect to blame or fault at all. (and being flayed alive hurts)

 

It must be something about the ethics of skiers. both sports enjoy the support of the same lawyers.

Quote:
Originally Posted by CTKook View Post

 

.........

 The law I would change is the statute in CO that allowed this case to be brought without it summarily being thrown out of court. Preferably the the statute and related rules could also be changed so that the plantiff would pay the legal fees of the person he sues in this type of fact pattern, and his attorney be subject to sanctions, as well. (To be clear this lawsuit was appropriately brought under existing law, I'm not saying it was frivolous under existing standards in that state.) Skiers hit each other and/or spontaneously fall down and hurt themselves. Good kids run into things. If you want to be able to sue a kid who collides with you unintentionally in the course of play you really should take up knitting. No offense to any actually knitters out there.

agree that the judge, court system, legislators need to restrict, limit what the courts are used for.

post #17 of 42

 

Quote:
Originally Posted by CTKook View Post

 Well, you're way off base starting @ parental responsibiltiy and working your way back up. Parents are liable for certain actions of their children such as vandalism and in some cases for failing to supervise children adequately. But barring that they're generally not responsible for simple "negligence" on the part of their child.

 

I don't think it's so far off base.  If you're skiing with your kids, and they hit somebody, there's at least a possibility that you didn't "supervise them adequately".  If the two sides disagree as far as responsibility for the accident and associated costs, then the lawyers and judges step in to decide.  I don't know if they explored other intermediate options in this case, such as a third-party arbitrated settlement.

 

If the parents' position was that it was an unavoidable accident, or that they aren't responsible, they should have fought the case.  But I'm pretty sure they would have lost.  Much easier to pillory this guy in the court of public opinion then to explain to a judge why you think you aren't on the hook for his medical bills after your kid ran into him from behind.

 

Quote:

The law I would change is the statute in CO that allowed this case to be brought without it summarily being thrown out of court. Preferably the the statute and related rules could also be changed so that the plaintiff would pay the legal fees of the person he sues in this type of fact pattern, and his attorney be subject to sanctions, as well. (To be clear this lawsuit was appropriately brought under existing law, I'm not saying it was frivolous under existing standards in that state.)

 

How could you summarily throw a case like this out of court?  You'd have to make a blanket decision saying that accidents caused by minors are immune to civil liability (or something like that), and there's no way that would fly.  What if the kid here was 10?  12?  14?  A couple days shy of his 18th birthday?  What if the kid was skiing way too fast or out of control?  When does it stop being "well, kids do crazy shit and you just have to deal with it?"

 

Unless you'd want to change the laws such that skiers cannot sue other skiers.  IMO you at least still need to allow this in situations of obvious negligence, so probably can't have a blanket decision like that.  Each case needs to be evaluated separately.

 

Forcing unsuccessful plaintiffs to pay the defendants' legal costs in civil suits would discourage frivolous lawsuits.  It could also discourage some non-frivolous ones, because if you go to sue a big company and lose, you could be on the hook for a ridiculous amount of money.  That's a whole other issue.  (Doing this just for cases that are dismissed with prejudice might be okay, but would not be relevant here, since it is clearly not a frivolous suit.)

 

Quote:

Skiers hit each other and/or spontaneously fall down and hurt themselves. Good kids run into things. If you want to be able to sue a kid who collides with you unintentionally in the course of play you really should take up knitting.

In general, ski areas are not responsible if you fall down and hurt yourself.  That's an "inherent risk" of skiing, and you agree to accept those when you buy a lift ticket.

 

In most -- but not all -- states, skier-skier collisions are not considered an "inherent risk" in the same way.  If you are injured in a collision that is someone else's fault -- even if it was an "accident" -- you can go after them to recover your medical expenses.

 

As a parallel example: people get in car crashes all the time, and most car crashes are accidental, yet car crashes are not an "inherent risk" of driving.  You can recover damages from someone who hits you or your property even if they didn't mean to or didn't do anything extremely reckless.  But if you blow out a tire on the highway and crash and get hurt, it's not like you can sue the DOT.  (Well, you can try, but you won't get very far.)

 

The only reason this is at all controversial is that the person who caused the accident is a fairly young minor.  If you don't like how this went down, then either you think that this kid's age absolves him and his parents from responsibility, or you think that skier-skier collisions (barring extremely reckless behavior) are an inherent risk of skiing (ie, that if someone "accidentally" runs into you and you get hurt, you should pay rather than them.)  Or you think this guy's insurance company should have taken a $75K loss to be nice to this family (or, more specifically, their insurance company.)  Anything else is just griping about the legal system in general.

 

Quote:

In cycling, riders absolutely destroy each other all the time, usually by accident and with no negligence, but sometimes because of lousy riding in a group, lapping wheels, erratic speed and braking, swerving, and so on, and I have never  heard of one cyclist suing another. In fact, in cycling it is considered un-cool to even discuss the accident with respect to blame or fault at all. (and being flayed alive hurts)

 

It must be something about the ethics of skiers. both sports enjoy the support of the same lawyers.

If you're talking about things that happen during races, I would consider that an "inherent risk" of a bike race.  You probably wouldn't even be able to sue over it if you wanted to.

 

If you were just out riding your bike on a bike path and someone crashed into you while trying to pass you?  They're definitely at fault.  Maybe cyclists are quicker to accept responsibility for their actions, so they don't end up in court. 

post #18 of 42

^^^I'm tempted to crosslink to the "Why don't more people take lessons" thread.  Let me break this down:  you may not have heard, but sking involves sliding on snow, with some risk of collision but with lots of recreation benefit.  BUT YOU CAN GET HURT.  There is a societal interest in healthy recreation for people in general, and particularly for kids.  Kids, particularly 7 year old kids, don't have the best of judgment at all times (though in the Swimm case even with the CO statute it's not clear the kid showed bad judgment at all).  If they get sued just because an injury occurs in the course of play that may have been a bit "exuberant," whether it's on skis or accidentally running into someone because they were running without looking on the playground, you 1) can create a lot of trauma for that one kid solely for doing something we want the kid to do, namely playing like a kid, and 2) will cause lots of other kids to not be able to play in the future.  

 

Most states would not allow a recovery for a collision given the facts of the Swimm case even if Swimm were an adult, because the courts understand the concept of recreation.  For a 7 year old there are several more reasons to add to not allowing a recovery. 

 

No one HAS to engage in skiing or riding at a resort.  If you want to be able to sue a 7 year old who runs into you by accident at a playground, stay away from playgrounds.  If you want to be able to sue a 7 year old who hits you by accident on the slopes, don't ski.  Don't mess it up for other people who know how to act.

post #19 of 42

I recall that a large portion of the 75K was for physical therapy performed by and paid to THE PLAINTIFF'S WIFE!  There's nothing inherently wrong with that, in and of itself.  I think she was licensed.  But, combined with all the other somewhat sketchy facts of this case

post #20 of 42

 

Quote:
Originally Posted by CTKook View Post

No one HAS to engage in skiing or riding at a resort.  If you want to be able to sue a 7 year old who runs into you by accident at a playground, stay away from playgrounds.  If you want to be able to sue a 7 year old who hits you by accident on the slopes, don't ski.  Don't mess it up for other people who know how to act.


What if in the case of a shooting range?  (Yes, minors are allowed to shoot at shooting ranges under the supervision of an adult.)

 

My point is simply that there's a world of difference between the common mishaps (and hence implied responsibility/seriousness of the endeavour) that can occur during intended usage of a playground, a ski resort, and a shooting range.  So your example is not applicable.

 

And even then, children are required to be supervised at play on a playground.  That supervision implies that yeah, somewhere along the lines an adult is still responsible.

 

Have you guys considered that if another kid hit your kid on the slopes to cause $75K in harm and damages, you'd sue without hesitation?  Be honest.  The whole "well, the perp is a minor, so it's accepted that they can cause reasonable harm without responsibility," argument is easily revealed to be a load of crock.  It's just that this sort of situation (where a kid they let to run off to play, but causes significant damage out of the range of their supervision) is so easily/scarily conceivable by many parents that they would rather wish that they wouldn't have to be responsible.


Edited by DtEW - 4/29/2009 at 08:57 pm GMT
post #21 of 42

 

Quote:
Originally Posted by DtEW View Post

 


What if in the case of a shooting range?  (Yes, minors are allowed to shoot at shooting ranges under the supervision of an adult.)

 

My point is simply that there's a world of difference between the common mishaps (and hence implied responsibility/seriousness of the endeavour) that can occur during intended usage of a playground, a ski resort, and a shooting range.  So your example is not applicable.
Edited by DtEW - 4/29/2009 at 08:57 pm GMT


There's a huge difference between a shooting range, and either a ski area or a playground, that anyone who knows anything about guns understands. 
 

 

It is not negligent supervision to let your kid run around out of your own arm's length at a playground.  It's not negligent to do the same at ski area.  For an older kid it is not negligent to let them go to the playground unescorted and unsupervised, or to ski by themselves.  

 

Again, if you want to be able to sue for injuries from simple accidents resulting from an activity you're not forced to do, whether basketball, catch with a football, or skiing, find something else to do.   

 

 

post #22 of 42

 

Quote:
Originally Posted by CTKook View Post

 


There's a huge difference between a shooting range, and either a ski area or a playground, that anyone who knows anything about guns understands. 
 

 

It is not negligent supervision to let your kid run around out of your own arm's length at a playground.  It's not negligent to do the same at ski area.  For an older kid it is not negligent to let them go to the playground unescorted and unsupervised, or to ski by themselves.  

 

Again, if you want to be able to sue for injuries from simple accidents resulting from an activity you're not forced to do, whether basketball, catch with a football, or skiing, find something else to do.   

 

 

 

Despite your insinuation, I can assure you that I am quite knowledgeable about guns, gun safety, and their legal ramifications.  Of course, as with many things people here try to pass off as a "point", all that is irrelevant even were I an archetypal Flower Power hippie.

 

For the issue at hand, a gun range and a ski slope are much closer than a playground.  That is, both gun range and ski slope are places where one can easily cause gross harm to another person through simple negligence/ignorance.

 

It's pretty easy to keep an eye on your kid at gun range, so therefore it's the mode.  Of course, it is harder to do the same at a ski slope, so many parents don't do it.  However, this this does not change the principles involved, rather that it is only the parents who are "accepting" the greater risk by not doing what they're really supposed to do.  It is not any less negligent, as you would like to believe.  It's simply more popular, but no less liable.
 

Just because many people think they need antibiotics for the common cold still doesn't make it so.

 

For an older kid ("older" is actually irrelevant; rather more responsible and skilled are the relevant properties), it is agrred that it would be less negligent/irresponsible to let him/her ski alone since they are less likely to harm others through negligence.  However, the liability remains the same!

 

Again, would you just throw up your hands and go "oh well, no liability here" if some other kid hit your kid on the ski slopes to cause you $75K worth of medical bills and cause him/her to be in physical therapy for months, and maybe to never have the physical capability again?  Can you see the flaws in your original rationale?

post #23 of 42
There are no flaws in my "original rationale." The law in most states would not allow for a recovery even from an adult given the facts at issue in the Swimm case. For very sound policy reasons. For children, it's not worth the time to explain but basically it's even harder to assert a negligence claim against a kid due to recognition of the fact that they're a kid.[paragraph, the new site seems to be keeping me from inserting paragraphs again] Would I sue if my kid got hit by another kid on the slopes and hurt? Nope, I'd never even consider it. I've had both my kids hurt in sports btw, sports have a risk of physical injury. There have been assclowns who've threatened to sue, e.g., the local youth soccer league when their kid got hurt, it's just something that I'd never do. [paragraph] You aren't knowledgeable about either guns or skiing if you think skis and guns are similar. Even for an adult who's not familiar with firearms the protocol is to watch them very closely at a range, even going to the extent of standing close enough to intervene if they start to do something stupid. The protocol for a beginning skier is to get them moving, with the understanding that they will at times be a bit out of control, that they will at some points fall, and that sooner or later they will in all likelihood collide with somebody, whether at 2 mph in the beginner's area or later. [paragraph] There's a sizable contingent on Epic that seems psyched about suing young kids if they get hit by them on the slopes. much more psyched than existing law would warrant. Whatever the dynamic behind that lack of outdoor values, I'd again simply suggest finding something else to do.
post #24 of 42

 

Quote:
Originally Posted by DtEW View Post

 

 

For the issue at hand, a gun range and a ski slope are much closer than a playground.  That is, both gun range and ski slope are places where one can easily cause gross harm to another person through simple negligence/ignorance.

 

It's pretty easy to keep an eye on your kid at gun range, so therefore it's the mode.  Of course, it is harder to do the same at a ski slope, so many parents don't do it.  However, this this does not change the principles involved, rather that it is only the parents who are "accepting" the greater risk by not doing what they're really supposed to do.  It is not any less negligent, as you would like to believe.  It's simply more popular, but no less liable.
 

Just because many people think they need antibiotics for the common cold still doesn't make it so.

 

For an older kid ("older" is actually irrelevant; rather more responsible and skilled are the relevant properties), it is agrred that it would be less negligent/irresponsible to let him/her ski alone since they are less likely to harm others through negligence.  However, the liability remains the same!

 

Again, would you just throw up your hands and go "oh well, no liability here" if some other kid hit your kid on the ski slopes to cause you $75K worth of medical bills and cause him/her to be in physical therapy for months, and maybe to never have the physical capability again?  Can you see the flaws in your original rationale?


Actually, a gun range is pretty far from a ski slope.  On the range, there are simple, well defined actions that, if taken, will ensure everyone's safety.  Safety on the range is pretty black and white.  There is no such thing on a ski slope and that is the problem (and why collisions are an inherent risk of the sport).  The Skier's Responsibility code says you have to avoid the riders ahead of you.  That's all well and good, but the code doesn't provide a guaranteed way of doing that.  So collision avoidance is left up to everyone's judgment and sometimes that results in two in-control riders trying to occupy the same space at the same time. That is essentially what happened here, and there is not enough information to conclude that the kid's judgment was flawed.  The fact that a collision occured does not in and of itself mean that it was foreseeable.
 

 

In terms of parental supervision, again the fact that a collision occured does not mean that the child was inadequately supervised.  If he was skiing in control and moving at a reasonable speed for the situation, and was versed in skier safety, I would call that reasonable supervision. 

 

I believe whole-heartedly that *certain* types of collisions are inherent risks of the sport.  How would I react if my child was hurt by a collision?  That depends.  If they were hit by one of the many idiots that regularly bomb through the slow zone on School Marm at Keystone, you bet I'd sue.  OTOH, if it was just a garden variety case of two skiers trying to occupy the same space at the same time, I'd like to think I would recognize that.

 

Skiing is a dangerous sport.  Carry health insurance, ski defensively, and understand that you can still get hurt.  With some notable exceptions, lawsuits involving skiers usually aren't good for anyone.  I'm firmly in the camp that those whose first reaction to collisions is to sue are not welcome in the sport.

post #25 of 42

 

Quote:
Originally Posted by davluri View Post

In cycling, riders absolutely destroy each other all the time, usually by accident and with no negligence . . .


This rationale (and you are not alone in your articulation of it) is the real problem with the misunderstanding of the American tort system.  It is a definitional issue.  An "accident" that is caused by one party not excercising due care is negligence.  The tortfeasor need not have any malicious mental state in order to be liable for negligent acts.  Certainly, most individuals that cause accidents don't "mean" to cause the accident.  Rather, they do so for precisely the same reasons you cite as illustrations of the manner in which cyclists cause accidents.

 

I am by no means attempting to be an apologist for people who sue 7 year olds, but the reason cyclists don't sue others for tortious acts is likely not becase no "negligence" occurred, but because of some collective ethos shared by the cycling community (or because they believe they are contributorily negligent--but that's another post). 
 

post #26 of 42

 

Quote:
Originally Posted by pcskier View Post

 


This rationale (and you are not alone in your articulation of it) is the real problem with the misunderstanding of the American tort system.  It is a definitional issue.  An "accident" that is caused by one party not excercising due care is negligence.  The tortfeasor need not have any malicious mental state in order to be liable for negligent acts.  Certainly, most individuals that cause accidents don't "mean" to cause the accident.  Rather, they do so for precisely the same reasons you cite as illustrations of the manner in which cyclists cause accidents.

 

I am by no means attempting to be an apologist for people who sue 7 year olds, but the reason cyclists don't sue others for tortious acts is likely not becase no "negligence" occurred, but because of some collective ethos shared by the cycling community (or because they believe they are contributorily negligent--but that's another post). 
 



This is Epic. Basic point: there has to be a duty of care for there to be "negligence." Check out assumption of risk as it relates to sports. For cyclists, if people agree (sometimes implicitly even) to a group ride, collision with a member of the group becomes an inherent risk of the sport. So no negligence, no liability, even if someone does something stupid, even if that stupid thing would be a violation of normal traffic rules. There are occasionally people who test the law on this point. The reason more don't (and the sport has its share of spills) is because most people who do it actually value the activity. You don't ch*t in your own backyard.
post #27 of 42

This case has become somewhat like the McDonalds coffee spill case.  The facts have become far less important than the symbolism of the case.  It is an example of the inherent faults in the US insurance/lawsuit system of paying for medical care after an accident. 

 

I know that each time I have gone to the ER I have later received a questionaire from my insurance company essentially asking me if someone else was at fault.  I have always said no (since I considered my injuries to be part of the inherent risk of what I was doing), but if I had said yes, then I expect that my insurance company would consider pursuing that party.  Once the case gets into the hands of an insurance company, the insured has very little control over it.

 

I have always wonderred why insurance companies don't all agree to eat their own losses, since they generally wind up suing each other.  When you take the cases in aggregate, all that really happens is that attorneys take 30% off the top of any money that changes hands, which only makes it more expensive for all of the insurance companies.  It looks especially stupid when you consider that most insurance companies buy and sell reinsurance policies which spread their risks out between themselves, anyhow.  At some level, they are often suing themselves.

 

Having said that, based on the limited facts that I have heard (a few of which might even be accurate, though I have no way of knowing), the guy who started the process which resulting in this case being brought sounds like a jerk, and his attorney didn't help matters.  The supposed victim probably would have been far better off if he had just chalked up his injury to a freak accident rather than try to go after the kid.  He may have coerced a settlement, but I don't think it was worth the public villification.  I also blame the lawyer, who should have known better and counseled his client that any publicity about this case would be very bad. 

 

 

post #28 of 42

 

Quote:
Originally Posted by CTKook View Post
There are no flaws in my "original rationale." The law in most states would not allow for a recovery even from an adult given the facts at issue in the Swimm case. For very sound policy reasons.

 

That does not match up with my understanding of the laws around this, but we are lacking a number of details regarding this specific case.

 

http://www.skilaw.com/skilawsurvey.html

http://www.skilaw.com/skistatelaw.html

 

In most states, you could recover from someone who hit you if they were negligent.  IMO, hitting someone from behind on a cattrack is in that category, but there could be extenuating circumstances.

 

Quote:

For children, it's not worth the time to explain but basically it's even harder to assert a negligence claim against a kid due to recognition of the fact that they're a kid.

 

Probably this is something that gets determined on a case-by-case basis most of the time.  Certainly if you're talking about criminal negligence it is (and should be).

 

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There's a sizable contingent on Epic that seems psyched about suing young kids if they get hit by them on the slopes. much more psyched than existing law would warrant. Whatever the dynamic behind that lack of outdoor values, I'd again simply suggest finding something else to do.

 

 

I don't want to sue anybody.  I don't want to see anybody suing anybody.  I'd be much happier if everyone did what they could to avoid collisions and nobody got hurt skiing.

 

But I also don't want to be held responsible if I'm injured because of someone else's recklessness or stupidity.  I wasn't aware that accepting that had become a "value".

post #29 of 42

 

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Originally Posted by CTKook View Post

 



. . . Check out assumption of risk as it relates to sports. For cyclists, if people agree (sometimes implicitly even) to a group ride, collision with a member of the group becomes an inherent risk of the sport. So no negligence . . ..

 

 

I disagree.  The doctrine of assumption of risk is an affirmative defense, and though in Western common law of yesteryear operated as an absolute bar to recovery, most jurisdictions in the United States have adopted the Uniform Contribution Among Tortfeasors Act ("UCATA").  Under UCATA, the liability of each party and non-parties is to be allocated according to the degrees of fault determined by the jury.  Accordingly, if a plaintiff "assumes risk," for his/her injuries, then that plaintiff may be allocated all or a significant portion of the fault for his/her injuries.  However, under UCATA, assumption of risk would no longer bar recovery, and it would have no effect at all on a finding of "negligence."

 

Vis a vis skiing, in some jurisdictions, there is even a constitutional bar on a contractual limitation of liabiity, which means that the tiny print waivers on the back of your lift ticket may be unenforceable.  See, e.g., 1800 Ocotillo, LLC v. WLB Group, Inc., 196 P.3d 222 (Ariz. App. 2008).

 

Good discussion.

post #30 of 42
^^^ You really need to read up on this stuff, particularly assumption of risk at it relates to sports. You're confusing the move to a comparative fault regime (and away from the prior rule that "contributory negligence" was a complete bar to someone being able to successfully sue) with the question of whether express or implied assumption of the inherent risk of an activity means there was never a duty in the first place and therefore no negligence. To help you out a bit the assumption of risk defense used to be used in situations where an obvious risk was present in a situation where public policy dictates a duty of care but someone went ahead anyway -- let's say the taxi taking you from the airport to the ski resort is a real rust-bucket but you get in anyway and then a wheel falls off and you gt hurt. Aka "secondary"assumption of risk. The sports type of assumption of risk, aka "primary" assumption of risk (same person goes skiing and gets hurt by a tree in an area where people have gone off the trail before) is still around. Pretty basic. Regarding waivers, in the large majority of states they're considered in accordance with sound public policy and enforceable against claims of negligence, though they need to be carefully drafted and entered into and there are some other factual issues that may affect whether they'll be enforced in some specific cases. As much as some people on here are lawsuit-happy, thankfully the courts (including in what many think of as "progressive" states such as CA) tend to actually be less so.
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