Trial News

The Tenth Circuit has affirmed a district court judgment in favor of a bicyclist seriously injured while riding on a path on federal land. The court ruled that the landowner had “willfully” failed to warn of a known danger, making it liable for a plaintiff’s injuries. (Nelson v. United States, 2019 WL 545109 (10th Cir. Feb. 12, 2019).)

In September 2008, James Nelson suffered brain damage, vision loss, permanent disfigurement, and other injuries when he was thrown from his bicycle after hitting a sinkhole while riding on a path on land owned by the United States Air Force Academy in Colorado. Although the academy considers public path users to be trespassers, the academy did not prevent the public from using the path and the academy never removed signs at the path entrances indicating that it was for bicyclists.

In 2014, Nelson and his wife sued the academy under the Federal Tort Claims Act (FTCA). Evidence showed that in August 2008, an academy employee who monitored the grounds discovered the sinkhole, which went across the entire path and was difficult to see. He photographed and documented the sinkhole but did not report it. The employee later testified that he had observed people using the path recreationally and that he would have reported the sinkhole had he believed that the trail was the academy’s responsibility to maintain.

The district court found in the plaintiffs’ favor and awarded approximately $7 million. The Tenth Circuit reversed, concluding that that the Colorado Recreational Use Statute (CRUS) protected the academy from liability. Under the statute, when landowners allow people to use their property for recreational purposes, then the recreational user is the one who bears the risk of injury. The court remanded, instructing the district court to determine whether a CRUS exception applied making landowners liable for the “willful or malicious failure to guard or warn against a known dangerous condition.” The district court ruled that this exception applied and reinstated the plaintiffs’ judgment.

On appeal for the second time, the Tenth Circuit noted that Colorado courts had not construed the language of the CRUS exception but had analyzed the exception’s key terms in other, related contexts. The court cited Przekurat ex rel. Przekurat v. Torres (428 P.3d 512 (Colo. 2018)), which involved a state law dram shop liability shield. In Przekurat, the state high court defined “willful” as the purposeful or voluntary failure “to warn or guard with conscious disregard for the consequences of that failure” and established that a defendant must have actual knowledge of a dangerous condition for it to be “known.” The Tenth Circuit applied Przekurat  “analogously,” stating it believed that the case is “indicative of how the Colorado Supreme Court would resolve” the case at hand.

The court then reviewed the district court’s findings regarding what the academy’s employee knew about the sinkhole and whether he acted willfully when he failed to warn about it. After reviewing the evidence on remand, the district court had found that the employee had actual knowledge of the sinkhole and its “obvious” danger to recreational path users. The district court rejected the employee’s argument that his belief that the path was not an official academy trail justified his decision not to report its dangerous condition. Once aware of the danger to path users, the employee’s choice “not to do anything or tell anyone about the sinkhole because he felt it was not a high priority relative to all the other erosion issues” was a voluntary and intentional decision not to warn about its danger, the district court found. The Tenth Circuit affirmed.

Not at issue in either appeal was whether the plaintiffs could recover against the academy, with the Tenth Circuit noting that the employee’s “knowledge and conduct are properly imputed to the academy as his employer.”

“The government has battled us every step of the way—through two trials and two appeals—and it’s gratifying that after 10 years our clients are significantly closer to receiving the funds they desperately need,” said Englewood, Colo., attorney David Hersh, who represents the plaintiffs. “At issue in this second appeal was whether the CRUS ‘willful conduct’ exception applied, and the Tenth Circuit’s decision affirms that it does and reinstates the judgment to our clients. Jim is still facing multiple surgeries, and this award will help him to obtain the health care he needs. We hope that the family will finally obtain closure.”