16 Comments

David did not wield a mighty SLINGSHOT. Rather he wielded a SLING.

Compare: SLINGSHOT

http://en.wikipedia.org/wiki/Slingshot

with SLING

http://en.wikipedia.org/wiki/Sling_%28weapon%29

David J. Pfahler’s complaint filed against an 8-year-old for an alleged skiing accident is here: http://www.onpointnews.com/docs/pfahler.pdf . Defendant’s answer is here: http://www.onpointnews.com/docs/pfahler1.pdf.

Two bizarre points:
(1) The LA Times article listed above tries to minimize the improbability and absurdity of Pfahler’s stance, emphasizing that “the case will be heard before a magistrate rathe than a judge or jury.” In fact, as can be seen from the complaint, Pfahler did demand a full jury trial. As Pfahler’s attorney Chalat well knew, the cost of defending this case before a jury would run to hundreds of thousands of dollars and would force defendants to settle even though they were likely not at fault.

(2) I think the funniest thing in the complaint is the claims by Pfahler’s WIFE. She wasn’t injured, so why is she a plaintiff? Apparently she suffered “loss of consortium” and the value of her time providing “nursing services” (billed, of course, at the cost of a registered nurse).

I understand the frustration of Giacalone.

1) Of the dozens of pretty good Rules of Conduct, only four get enforced;

2) Only complaints from judges get investigated. Most public complaints are tossed in the trash. Counter-examples from lawyers only prove the point by their rarity;

3) Any attempt at improving lawyer accountability by passing a statute gets declared unconstitutional by the state supreme court. The US Supreme Court has abdicated its role to the state supreme courts, and supports their total, self-dealing control of lawyer discipline.

David, imagine the frustration of the public, and of the victims of lawyer misconduct.

abcd, the damages are what they are . . . . it’s not the defendant’s concern that someone steps up and provides the care gratis. That’s pretty well-settled case law.

I still think the suit ridiculous.

SPO – are you sure you know what “loss of consortium” means? How can any claim be more preposterous in this case than that? How can this supposed “shoulder injury” possibly implicate “loss of consortium” by the wife! (Imagine trying to explain to the defendant, though, what “loss of consortium” means).

I am quite frankly at a loss why anyone thinks the ski collision suit is in any way ridiculous.

If two adults were involved then no one would be giving any thought to it at all. There would just be a fact issue over whose version of the accident is true, one side or the other is lying and we aren’t really in any position to judge which is telling the truth.

So the only real issue is whether there is some reason that because of his age he should get immunity from the harm that he caused. As I see it and apparently as Colorado law sees it, if he is old enough to be on the slopes then he is old enough to be responsible for any harm that he causes to another person. It appears that the plaintiff sued the kid directly because the Colorado statute appears to put liability directly on him, otherwise the plaintiff could probably also sued parents for negligent supervision for not controlling their child.

The cost of defense is not really likely to be a consideration for the defendants in this case. Almost certainly the defendant is an insured under his parents homeowners policy which will provide a defense and cover this suit. (if he is not then likely he is judgment proof unless for some odd reason he has a bunch of his own money) The defense of the suit will not run into the hundreds of thousands of dollars. 3-4 depositions maybe (assuming they depose a doctor) My guess the defense costs will be budgeted around $30-40,000 at most and possibly alot cheaper, its a pretty straight forward suit all things considered.

Loss of consortium seems like it should be fun to cross examine on the stand…
Since the damage has to do with the quantity, quality and types of consortium a great deal of time during deposition should be spent here. And if one can find that either spouse has been dipping into extramarital sources of consortium then that seems relevant to the claims of loss also.

Antinome, the suit is “ridiculous” in the sense that the plaintiffs’ story is preposterous. Obviously, the Pfahler and his wife’s real damages do not include costs of his wife’s “nursing services” or for loss of consortium. Come on, surely you must admit the pair of plaintiffs is padding their damages claim.

Equally obviously, his injury was due to some preexisting condition, and most likely would have happened on any fall. That is why a reasonable 60-year-old person who is going skiing is going to have health insurance. So there are no “out-of-pocket” damages to him at all, certainly not $75K worth. The fact that he is suing, and with the padded damages, shows he and his wife are unreasonable or dishonest, and very strongly supports the kid’s version of the story: that the kid was skiing slowly, that Pfahler stopped for no apparent reason in the middle of the slope, that the kid barely tapped Pfahler, and that after Pfahler fell, Pfahler grabbed the kid, cursed him, and threatened immediately to sue him and his family.

Have you noticed that no human being in the history of the human race has ever sued a 7-year old for negligence due to a skiing accident? And the first person to do so, just *HAPPENS* to be a 60-year old man, whose wife also sues for some truly bizarre damages theories? Of course it’s “ridiculous” – it’s never even happened before it’s so ridiculous! It’s literally unprecedented, and the surrounding facts (most remarkably, it’s not just the old man, it’s his *wife* whose suing too!) are equally preposterous.

Antinome, the reason the lawsuit is ridiculous is that an 8 year old kid, no matter what the statute says, is just that, an 8 year old kid, skiing, he got into an accident–these things happen.

And your formulation comes dangerously close to strict liability, by the way. Plus, the suit is inherently unfair. How is a kid going to stand up to cross? Also, this idea that parents should be responsible for “controlling” their kid on the slopes is a little much. And, if this guy doesn’t have witnesses, how is he going to prove anything more than an accident? Furthermore, lawsuits are intrusive and one is not subjected to them freely. If it turns out that this kid was not negligent, then he has been put through the wringer for nothing. Yes, society has agreed that we have laws etc. and lawsuits are there to settle disputes, but the bottom line is that there can be too much of a good thing, and I suspect most people think this is an example.

As for loss of consortium, that’s a separate claim from the nursing services that are required. And to the extent nursing services are supplied, gratis, that would be a windfall to the defendant.

Following up on federalist’s comments:

One cruel consequence of suing a 7-year-old (kid was 7 at time of incident and is now 8) is that the kid is basically held hostage by the plaintiffs. Everyone knows that being sued, deposed and cross-examined is traumatic even to an adult. Some doctors have committed suicide, for example, after being sued – it’s a tough, grueling process. To an 8-year-old, it likely could be seriously terrifying.

So the parents have a gun to their head: “settle up, or we’ll drag your kid through the ringer.”

That’s why it’s just not *done* among reasonable people to sue 7 year olds . It’s not something a normal, decent, adult does after a skiing accident. It’s why no one has ever done this in the past. The litigation posture is unfair to the kid and to his parents.

There are unwritten norms of decent society. Not to sue a 7-year-old for negligence on a ski slope, and, if you do sue him, not to wildly inflate the damage claims, is one of those norms.

If the actions of a lawyer would constitute child abuse outside of a deposition, is he still protected from prosecution?

“If the actions of a lawyer would constitute child abuse outside of a deposition, is he still protected from prosecution?”

Of course! Don’t you know that lawyers are more specialer than the rest of us lowly mortals?

Sorry to spam this board here about the Pfahler ski litigation, but I had one other question.

I understand that no 7-year old (probably noone under the age of 12) has ever been sued for negligence for skiing badly.

Has a 7-year-old ever been sued, however, for negligence in any case? What were the circumstances? (The cases cited in the articles listed had to do with children who sued, and the defendants asserting contributory negligence.)

I don’t get it either. The skiing lawsuit, if Pfahler is telling the truth, is exactly what tort law is for.

This article in the Vail Daily News says that Pfahler, the plaintiff, had sued several times before for sports injury, including one skiing injury on the same ski resort he is suing for his shoulder injury. URL: http://www.vaildaily.com/article/20080107/EDITS/829137141

Maybe he makes a second income this way? Wasn’t there a Taxi episode on this?

[…] The boy’s parents, Robb and Susan Swimm of Colorado, have agreed to a $25,000 settlement. (Matthew Heller, On Point News, Jul. 22). Earlier: Dec. 28, Jan. 3. […]