This story hit the news in December 2007. 60 year old David Pfahler was skiing at Colorado’s Beaver Creek Ski Resort in January 2007 when another skier, then 7 year old Scott Swimm collided, with him. Pfahler injured his shoulder in the incident. Suit was filed in the United States District Court in Colorado. This is a hyperlink to the actual lawsuit.
There is much more to this story. The U.S. Chamber of Commerce has put together a two minute video depicting little Scott being deposed by the mean lawyers representing the plaintiff, Mr. Pfahler. Much of the video depicts the parents discussing the impact the suit has had on Scott.
I’m sure it has had an impact on the child. But the back story is the U.S. Chamber of Commerce has a much more despicable and hidden agenda. They are rolling out more videos like this as part of their push for the elimination of the Arbitration Fairness Act of 2009. What’s that you say? It’s a proposed federal bill intended to reduce mandatory arbitration clauses in contracts between parties not of equal bargaining power.
The first paragraphs of the proposed Act state the purpose of the proposed legislation, ie: what it’s designed to do.
- (1) The Federal Arbitration Act (now enacted as chapter 1 of title 9 of the United States Code) was intended to apply to disputes between commercial entities of generally similar sophistication and bargaining power.
- (2) A series of United States Supreme Court decisions have changed the meaning of the Act so that it now extends to disputes between parties of greatly disparate economic power, such as consumer disputes and employment disputes. As a result, a large and rapidly growing number of corporations are requiring millions of consumers and employees to give up their right to have disputes resolved by a judge or jury, and instead submit their claims to binding arbitration.
- (3) Most consumers and employees have little or no meaningful option whether to submit their claims to arbitration. Few people realize, or understand the importance of the deliberately fine print that strips them of rights; and because entire industries are adopting these clauses, people increasingly have no choice but to accept them. They must often give up their rights as a condition of having a job, getting necessary medical care, buying a car, opening a bank account, getting a credit card, and the like. Often times, they are not even aware that they have given up their rights.
- (4) Private arbitration companies are sometimes under great pressure to devise systems that favor the corporate repeat players who decide whether those companies will receive their lucrative business.
- (5) Mandatory arbitration undermines the development of public law for civil rights and consumer rights, because there is no meaningful judicial review of arbitrators’ decisions. With the knowledge that their rulings will not be seriously examined by a court applying current law, arbitrators enjoy near complete freedom to ignore the law and even their own rules.
- (6) Mandatory arbitration is a poor system for protecting civil rights and consumer rights because it is not transparent. While the American civil justice system features publicly accountable decision makers who generally issue written decisions that are widely available to the public, arbitration offers none of these features.
(7) Many corporations add to their arbitration clauses unfair provisions that deliberately tilt the systems against individuals, including provisions that strip individuals of substantive statutory rights, ban class actions, and force people to arbitrate their claims hundreds of miles from their homes. While some courts have been protective of individuals, too many courts have upheld even egregiously unfair mandatory arbitration clauses in deference to a supposed Federal policy favoring arbitration over the constitutional rights of individuals.
The Chamber loves mandatory arbitration. The Chamber represents big business. Big business hates juries. Too much unpredictability with jury verdicts.
Here’s an example of how mandatory arbitration clauses work. Say you hire a lawyer. Then you decide you have to sue your lawyer. Perfectly within your rights to do so as long as you have a valid cause of action. If the contract that you signed with your lawyer has an arbitration clause, you would be precluded from having your case heard by a jury. Arbitration clauses typically spell out in small print where, when, how, and by whom your legal dispute can be heard. Arbitration clauses carve out the litigants’ rights and favor the drafter of the contract. That’s why the Chamber likes these contracts. The Chamber hates trial lawyers and hates litigation.
The skiing story is just part of the Chamber’s “Faces of Lawsuit Abuse” campaign which will include the Scott Swimm video clip as well as others coming to movie theaters near you, which will be shown as pre-movie shorts. The Chamber has a lot of money to put into campaigns like this.
Here’s the rest of the skiing story. The plaintiff in the case, through his lawyers, sued the boy’s father for “negligent supervision”. This is a well recognized cause of action in the law. The boy was skiing with his father at the time. The parents’ homeowners insurance company, which protected the Swimms for negligence claims, settled with the plaintiff. The parents were reluctant to settle because they wanted to sue Mr. Pfahler because a) Scott’s father claimed that the plaintiff assaulted his son,( from the video depicting the collision on the slopes it appears as though the parents are claiming that Pfahler grabbed the boy after the collision and b) the parents wanted to keep the option open to allow Scott to sue Pfahler for some sort of abuse of process claim.
Pfahler’s claim may seem distasteful but it sure sounds as though he had a valid cause of action.
Pfahler’s Denver attorney, Jim Chalat of Chalat Hatten & Koupal, has been quoted as follows:
“The national outrage the case has stirred is unjustified because it was a very clear violation under the Colorado Ski Safety Act. The Colorado Ski Safety statute specifically provides that skiers have to ski in control, look where they’re going and avoid people and objects below them,” Chalat said. “It doesn’t matter if you’re 8, 18 or 80, you still have that same duty of care.”
To me, the Chamber’s video is a bit over the top. It’s also a bit ironic that the parents wanted to be able to file suit themselves, but they criticize the plaintiff’s right to do so. They are critical of the process, as is the Chamber, but wanted the process to be available for them. That process includes the examination of fact witnesses at depositions conducted by lawyers for both sides in the presence of a stenographer. The competency and credibility of witnesses, including minors, is evaluated every day in courtrooms across the country by juries, and by lawyers and insurance companies who evaluate cases. Children can, and are, as in the case of Scott Swimm, witnesses to events, and their recollection of those events is part of the evidence.
Remember, this was really a claim for negligent supervision against the parent, Robb Swimm. And remember, the Chamber has a hidden agenda which includes reducing the number of cases that can be heard by juries.
Here’s the video.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.