Pfahler et al v. Swimm et al

Filing 1

Pfahler et al v. Swimm et al

Doc. 1

I N THE UNITED STATES DISTRICT COURT FO R THE DISTRICT OF COLORADO Ci vi l Action No. D AVID J PFAHLER and, . M ARLEN E AMBROGIO Pl ai nti ffs, v. RO BB SWIMM, Custodian for Scott Swimm, and SCOTT SWIMM, Individually, D efendants.

CO M PLAI N T AND J RY DEMAND U

The plaintiffs, David J Pfahler and Marlene Ambrogio, file their Complaint and J ry . u D emand, and allege as follows: 1. Thi s Court has original jurisdiction over this civil action pursuant to 28 U.S.C. § 1332(a)(2) because the parties are citizens of a State and citizens or subjects of a forei gn state. 2. 3. 4. The plaintiffs are citizens of Pennsylvania. The defendants are citizens of Colorado. The matter in controversy, taking into account the nature, extent, and permanency of the injuries alleged, and the reasonable actual, general, and non-economic damages sustained by the plaintiffs, exceeds the value of $75,000.00, exclusive of Page 1 of 5

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i nterest and costs.

GENERAL ALLEGATIONS 5. O n Friday, J nuary 12, 2007, the plaintiff, David J Pfahler, and the defendant, Scott a . Sw i mm, were both skiing at Beaver Creek Ski Resort in Colorado on a trail named Gol den Bear near the base of the mountain. 6. Both Mr. Pfahler and Mr. Scott Swimm were "skiers" pursuant to the Colorado Ski Safety Act. C.R.S. § 33-44-103(8). 7. M r. Pfahler was skiing at a slow pace ahead (downhill) of the defendant. Mr. Pfahler was plainly and readily visible, maintaining a proper lookout, skiing slowly and in control. 8. D efendant Swimm was skiing negligently and recklessly, at a high rate of speed. He collided into Mr. Pfahler causing him to be injured. 9. The sole proximate cause of the collision was the negligent manner in which the defendant was skiing. NEGLIGENCE PER SE PURSUANT TO THE COLORADO SKI SAFETY ACT 10. D efendant Swimm had the duty to maintain control of his speed and course at all ti mes when skiing and to maintain a proper lookout so as to be able to avoid other ski ers and objects. As the uphill and overtaking skier, defendant Swimm had the pri mary duty to avoid collision with any person in front of him. C.R.S. § 33-44109(2). 11. The defendant had the sole responsibility for knowing the range of his own ability Page 2 of 5

to negotiate any slope or trail and to ski within the limits of such ability. Id., §109(1). 12. The defendant had the statutory duty to heed all posted information and other w arni ngs and to refrain from acting in a manner which may cause or contribute to the injury of the skier or others. Id., §109(5). 13. 14. D efendant breached these duties. A breach of a statutory duty enumerated in the Colorado Ski Safety Act, to the extent such violation causes injury to any person, constitutes negligence on the part of the person violating such requirement. C.R.S. §33-44-104(1). 15. As a proximate result of the breach of the statutory duties by the defendant Swimm, pl ai nti ffs suffered injuries, damages and losses as set out below. NEGLIGENCE 16. The defendant also owed a common law duty to refrain from skiing in a manner w hi ch foreseeably would cause injury to others. He breached this duty to the pl ai nti ff by skiing too fast and out of control, thus colliding into Plaintiff and being the sole proximate cause of Plaintiff's injuries, damages, and losses. D AM AGES 17. The collision caused Mr. Pfahler to suffer a massive anterior rotator cuff tear, requi ri ng right shoulder arthroscopy with subacromial decompression with release of coracoacromial ligament, distal clavicle resection and debridement of labral teari ng, labral tearing and chondroplasty, and open repair of massive rotator cuff. 18. H e has had to engage in an extensive and continuous course of physical therapy. Page 3 of 5

19.

The plaintiffs have incurred and will incur in the future economic losses, including l ost vacation expenses, hospital, surgical, and medical expenses, charges for physi ci ans' services and examinations, clinic visits, physical therapy, radiographic studi es, lost sick time, and other related expenses. These damages are all caused by the injuries he sustained as a proximate result of the defendant's negligence, and negl i gence per se.

20.

M r. Pfahler may sustain permanent disability, impairment, disfigurement and hei ghtened risks of arthritic changes in his shoulder.

21.

As the direct and proximate result of the injuries suffered, Mr. Pfahler has and will conti nue to suffer non-economic injuries including, disfigurement and impairment.

22.

M r. Pfahler has and will also sustain pain, suffering, mental and emotional distress, and a loss of enjoyment of life.

23.

The total value of these injuries, damages and losses, are as yet unknown but nonethel ess exceed the jurisdictional threshold of this court. LOSS OF CONSORTIUM

24.

At all relevant times, Marlene Ambrogio was married to David J Pfahler. Marlene . Ambrogi o claims damages for the loss of her husband's services, consortium and for the value of her time in connection with her nursing, medical and other services rendered to Mr. Pfahler. WHEREFORE, Plaintiffs pray for general and special damages in amounts to be

determi ned at trial, interest from the date of the injury, J nuary 12, 2007, costs and a expenses of suit, attorneys' fees, if appropriate, and such other relief as the Court deems Page 4 of 5

proper. J RY TRIAL DEMANDED U

Respectful l y submitted,

s/ Russell R. Hatten ______________________________ Russel l R. Hatten J mes H. Chalat a CH ALAT HATTEN LAW OFFICES, P.C. 1900 Grant Street, Suite 1050 D enver, Colorado 80203 Tel ephone: 303.861.1042 Fax: [phone] Emai l : [e-mail] ATTO RN EYS FOR PLAINTIFFS

Pl ai nti ffs' Address: 1131 No. 28th Street Al l entow n, PA 18104-2907

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