Nelson et al v. United States of America

Filing 226

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AS TO APPLICABILITY OF EXCEPTION TO COLORADO RECREATIONAL USE STATUTE entered by Judge Wiley Y. Daniel on 6/9/17. It is hereby adjudged and ORDERED: 1. The Court has jurisdiction over Plaintiffs claim s under the Federal Tort Claims Act.2. The United States liability for the damages sustained by the Plaintiffs James Nelson and Elizabeth Varney is not limited by the Colorado Recreational Use Statute because of the United States willful failure to w arn or guard against a known dangerous condition on its property likely to cause harm.3. The United States is liable for injuries, losses or damages sustained by Mr. Nelson and Elizabeth Varney in regard to Mr. Nelson's accident on September 3, 2008. 4. Defendants willful action and inaction, for which it is liable, were the direct and proximate cause of the Plaintiffs injuries, losses, and damages.5. Defendant is 100% liable to the Plaintiffs for their damages.6. Plaintiff James Nels on is hereby awarded his damages as I previously determined in my May 14, 2014, Order in the total amount of $6,900,793.53.7. Plaintiff Elizabeth Varney is hereby awarded her damages as I previously determined in my May 14, 2014, Order in the to tal amount of $401,425.8. Plaintiffs are awarded post-judgment interest at the rate allowed by law.9. Plaintiffs are awarded their costs and attorneys fees incurred in bringing this action pursuant to Colo. Rev. Stat. § 33-41-105.5. Plaintiffs shall provide their Bill of Attorneys Fees and Bill of Costs to the Court in accordance with the Federal Rules of Procedure. (rkeec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 11-cv-02953-WYD-CBS
JAMES NELSON and
ELIZABETH VARNEY,
Plaintiffs,
v.
UNITED STATES OF AMERICA,
Defendant.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER AS TO
APPLICABILITY OF EXCEPTION TO COLORADO RECREATIONAL USE STATUTE

I.

INTRODUCTION
James Nelson was seriously injured in a bicycle accident on September 3, 2008,

when he encountered a sinkhole/washout on a bike path on United States Air Force
Academy [“Academy”] land. He sued under the Federal Tort Claims Act [“FTCA”] for
damages.
This case proceeded to a liability trial to the Court on December 2-5, 2013. In my
Findings of Fact, Conclusions of Law and Order of February 6, 2014 (ECF No. 132)
[“February 2014 Order”], I found the United States liable to Plaintiffs under the Colorado
Premises Liability Act for injuries, losses, and damages sustained by Mr. Nelson arising
from his accident. I found that Mr. Nelson was an invitee and/or a licensee on the
Academy property at the time of the September 3, 2008 accident. I also found the
United States liable for the injuries, damages, and losses sustained by Mr. Nelson’s wife

on her loss of consortium claim. While the United States argued that it was entitled to
immunity under the Colorado Recreational Use Statute [“CRUS”], I found that the CRUS
was not applicable because the Academy did not intend either directly or indirectly for
the path where the accident occurred to be used for recreational purposes.
A damages trial was held on April 21-25, 2014. In Findings of Fact and
Conclusions of Law issued on May 14, 2014 (ECF No. 180) [“May 2014 Order”], I found
that damages had been established in the amount of $6,900,793.53 for James Nelson
and $401,425 for his wife Elizabeth Varney. Judgment was entered for Plaintiffs in the
amount of $7,302,218.53, plus post-judgment interest and costs. (ECF Nos. 181, 191.)
The United States appealed my February 2014 Order as to the ruling that it could
not take advantage of the liability limitations under the CRUS because the Academy did
not intend to open the path for public recreational use. The Tenth Circuit reversed my
decision on this issue, finding that the CRUS applied and that Mr. Nelson was a
permissive user of the path. Although the Academy did not directly permit use of the
path, the Tenth Circuit found that Mr. Nelson was indirectly permitted to use the path.
(Tenth Circuit Opinion of June 25, 2016 [“Tenth Circuit Op.”], ECF No. 207, p. 8.)
The Tenth Circuit found on that issue that Academy personnel knew for many
years that the public used the path for recreational purposes, and knew the “Bicycle
Path” sign was placed near the entrance to the Academy boundaries that gave the
impression the path was open for general public use. (Tenth Circuit Op., p. 8.) It also
noted that “prior to the accident the Colorado Department of Transportation offered to
remove the sign, an offer the Academy ignored”, and “the Academy never prevented
usage of the path or took steps to close it off to the public.” (Id.) It was enough “that
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the Academy’s purposeful actions implicitly allowed or acquiesced in Mr. Nelson’s use
of the path.” (Id., p. 10.) “Its knowledge that the path was used by the general public,
combined with its knowledge of the sign and its refusal to remove it, is enough to
demonstrate permission under the Act.” (Id.) In short, the Academy “knew of the
public’s use of the path, and declined the opportunity to end that use.” (Id., p. 11.)
In so holding, the Tenth Circuit held that the United States was not liable for
negligent maintenance of the path. (10th Cir. Op., p. 2.) However, it remanded the
case to determine if an exception to the liability limitations of the CRUS applied —
whether the United States’ actions constituted a “willful or malicious failure to guard or
warn against a known dangerous condition, use, structure, or activity likely to cause
harm . . . .” (Id., pp. 2, 12.) It found that this issue had not been adjudicated and “that
the district court should decide this issue in the first instance.” (Id., pp. 11-12.)
Having reviewed the entirety of the record and the evidence, counsel’s
arguments, the parties’ proposed findings of fact and conclusions of law, my Previous
Findings of Fact, Conclusions of Law and Orders, and the Tenth Circuit’s Order, I now
enter the following Findings of Fact, Conclusions of Law, and Order.1
II.

FINDINGS OF FACT
A.

1.

Accident Background

This case arose from a biking accident that occurred on an asphalt bicycle paved

path (“the asphalt path” or “the path”) located on real property owned by the Academy in
Colorado Springs, Colorado. (February 2014 Order, Undisputed Facts ¶ 1.)

1

I incorporate by reference my previous Findings of Fact and Conclusions of Law, but restate a
number of them herein for ease of reference and for clarity regarding the remanded issue.

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2.

The biking accident occurred on September 3, 2008. (February 2014 Order,

Undisputed Facts ¶ 2.) While riding his bicycle on the asphalt path, Mr. Nelson
encountered a sinkhole/washout. (Id., ¶ 38; Findings of Additional Fact ¶¶ 10, 13.)
Mr. Nelson lost control of his bicycle (id., Findings of Additional Fact ¶ 13), and was
flung onto the asphalt path. (See Pl.’s Ex. 9.)
3.

Mr. Nelson sustained serious injuries as a result of the bicycle accident.

(February 2014 Order, Findings of Additional Fact ¶ 7.) He was hospitalized for a
month, and received ongoing and continuing medical and rehabilitative treatment
thereafter. (Id. ¶¶ 3, 8.)
4.

As a result of the crash, Mr. Nelson suffered multi-system permanent injuries,

including a brain injury, vision loss, permanent scarring and disfigurement, endocrine
system damage, and the need for extensive facial orthopedic reconstructive surgery.
He suffered economic damages, non-economic damages, permanent impairment, and
disfigurement in the amount of $6,900,793.53. Mr. Nelson’s wife, Ms. Varney, suffered
loss of consortium damages in the amount of $401,425. (See May 2014 Order.)
5.

Mr. Nelson was not at fault in causing his own injuries, damages and losses.

(February 2014 Order, Conclusions of Law ¶¶ 81-86.)
B.
6.

Background Regarding Asphalt Path

The asphalt path was located on the east side of Colorado Interstate 25 [“I-25”],

paralleling the highway, near the eastern boundary of the Academy. (February 2014
Order, Undisputed Facts ¶ 3.) The Academy encompasses approximately 18,500
acres. (Id. ¶ 6.)

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7.

The Academy knew, prior to Mr. Nelson’s accident on September 3, 2008, that

the path existed on its property. (February 2014 Order, Findings of Additional Fact
¶ 37.)
8.

The Academy also knew, prior to September 3, 2008, that members of the public

used the path where Mr. Nelson was injured. (February 2014 Order, Findings of
Additional Fact ¶ 43; see also Pl.’s Trial Ex. 107, Requests for Admission # 8; Tenth
Circuit Op., p. 11.)
9.

In July 1958, the Academy granted an easement to the Colorado Department of

Highways (now the Colorado Department of Transportation) [“CDOT”] for the
construction of a highway, designated currently as I-25. (February 2014 Order,
Undisputed Facts ¶ 8.) The Academy also granted an easement to Mountain View
Electric Association [“MVEA” or “Mountain View Electric”] in this same area to build and
maintain an overhead utility line. (Id. ¶ 9.)
10.

The asphalt path was located within the CDOT easement. (February 2014

Order, Undisputed Facts ¶ 10.) The easement granted to CDOT and the Memorandum
of Understanding and contractual obligations related to that easement do not discuss
who is responsible for maintenance of the path. (Id., Findings of Additional Fact ¶ 28.)
11.

CDOT representatives Michael Shay and Russell Bircher testified that it was not

CDOT’s responsibility to maintain the path, and no evidence was presented to the
contrary. (February 2014 Order, Findings of Additional Fact ¶ 29.) Mr. Bircher testified
that if CDOT had wanted to do any work on the path, it would have had to contact the
Academy for permission since the path was on Academy property. (Id. ¶ 30.)

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12.

There is also no evidence that MVEA was responsible for maintenance of the

path. (February 2014 Order, Findings of Additional Fact ¶ 32.)
13.

The Academy, through its representative Johnny Van Winkle, told the

public immediately after Mr. Nelson’s accident that it was the Academy’s responsibility
to fix the path. (February 2014 Order, Findings of Additional Fact ¶ 21.) He also said
that upkeep of the property was the Academy’s responsibility. (Id.)
14.

Consistent with Mr. Van Winkle’s testimony, immediately following Mr. Nelson’s

accident, the Academy filled the sinkhole/washout on the path with rip-rap, covered it in
gravel, and took other action to fix the sinkhole. (February 2014 Order, Findings of
Additional Fact ¶ 98; see also Pl.’s Ex. 10.)2
15.

The Academy maintained a series of official recreational and multi-use trails.

(February 2014 Order, Undisputed Facts ¶ 14.) The asphalt path where the accident
occurred was not part of the Academy’s official trail system. (Id. ¶ 16.) All of the official
trails were unpaved, and were located west of I-25. (Id., Findings of Additional Fact
¶ 51.) The path was also not identified on the Academy’s Real Property Record, and
was not designated or maintained as a recreational trail. (Id. ¶ 49, Undisputed Facts
¶ 13.)
2

As noted in my February 2014 Order, this evidence was not offered or admitted at trial to show
negligence, culpable conduct, a defect in the path’s design or construction or a need for warning, but for
another purpose. It was offered to show the United States’ intent with regard to use of the path by the
public for recreational purposes. (February 2014 Order, Conclusions of Law ¶ 59.) Here, I am considering
it only for purposes of determining whether the United States could have warned or guarded against the
path prior to the accident, not for whether the condition was dangerous or whether there was actually a
need for a warning or instruction. See Leprino Foods Co. v. Factory Mut. Ins. Co., 653 F.3d 1121, 1125
(10th Cir. 2011) (“Rule 407 only prohibits the admission of evidence of subsequent remedial measures for
the purposes of ‘negligence, culpable conduct, a defect in a product, . . .or a need for a warning or
instruction. . . .The rule permits the evidence’s admission for other purposes. . . .”) (quotation and internal
footnote omitted).

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16.

The Academy had a Trails Management Plan that provided guidance about the

proper maintenance to be performed on official trails. (February 2014 Order,
Undisputed Facts ¶ 17.) The Plan did not apply to unofficial trails. (Id. ¶ 18.)
17.

In 2007, CH2M Hill Academy Services [“CHAS”] entered into a contract with the

Academy. (February 2014 Order, Findings of Additional Fact ¶ 34.) The CHAS
Contract required CHAS to maintain only those paths and trails that were identified on
the Academy’s Real Property Record. (Id. ¶ 35). Since the asphalt path on which the
biking accident occurred was not on the Academy’s Real Property Record, maintenance
of the path did not fall within the scope of the CHAS contract. (Id., ¶ 36.)
18.

The path has not been actively maintained by the Academy. (February 2014

Order, Findings of Additional Fact ¶ 42.)
19.

Jeffrey Thoma, the head of Academy security, did not monitor the path.

(February 2014 Order, Undisputed Facts ¶ 11.)
C.

Facts Relevant to CRUS Exception for Willful or Malicious Failure to
Guard or Warn Against a Known Dangerous Condition, Use, Structure, or
Activity Likely to Cause Harm
i.

20.

Dangerous Condition Likely to Cause Harm

The sinkhole that Mr. Nelson encountered during the accident was the result of

wash-out/erosion problems in the area. (February 2014 Order, Findings of Additional
Fact ¶ 74.) More specifically, the sinkhole was the result of off-site water flow onto
Academy property that overwhelmed the culvert running under the path, causing a
washout. (Id. ¶ 75.)
21.

Off-site water flow onto Academy property in the area of the asphalt path

was a known condition and problem that the Academy had been investigating,
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documenting, and addressing for many years before September 3, 2008. (February
2014 Order, Findings of Additional Fact ¶ 76.)
22.

The sinkhole/washout encompassed the entire width of the asphalt path.

(February 2014 Order, Undisputed Facts ¶ 39; see also Pls.’ Exs. 8, 9–2.)
23.

The sinkhole/washout was on a path used by the public to walk, jog, and bicycle.

(February 2014 Order, Undisputed Facts ¶ 27; Findings of Additional Facts ¶¶ 74, 87.)
24.

Mr. Nelson fell into the sinkhole while riding his bicycle on the path. (February

2014 Order, Undisputed Facts ¶ 38.) He was flung onto the path. (See Pl.’s Ex. 9.)
25.

Analysis of Mr. Nelson’s bicycle by Defendant’s expert, Mr. Nicholas Ault,

indicates that Mr. Nelson struck the sinkhole with sufficient force to cause substantial
damage to various parts of the bicycle. (February 2014 Order, Undisputed Facts ¶ 31.)
26.

Dr. Brian Mihlbachler, who functioned for all intents and purposes as an

Academy employee as explained below, testified that the sinkhole was large and readily
visible during the day. However, third party witness Jesse Kurtz, who encountered the
sinkhole while jogging the morning after Mr. Nelson’s accident, thought the sinkhole was
water until he was significantly closer to it. (February 2014 Order, Findings of Additional
Fact ¶¶ 23, 24.) I previously found, and reaffirm, that Mr. Kurtz’s testimony was
credible. (Id., Conclusions of Law ¶ 83; see also Pl.’s Ex. 8.) Moreover, photographs of
the site indicated the washout/sinkhole was located in low area near bushes and other
vegetation that created shadows. (See Pl.’s Exs. 8-1, 8-2, 8-4, 8-5.) Accordingly, I find
that the evidence shows that the nature of the sinkhole/washout was difficult to
ascertain by users of the path.

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27.

Academy representative Jeffrey Thoma testified that the condition of the asphalt

path with the sinkhole on September 3, 2008, was dangerous and hazardous for users
of the path. (February 2014 Order, Findings of Additional Fact ¶ 77.) The Academy’s
Rule 30(b)(6) representative Greg Long testified that the sinkhole was a dangerous
emergency situation that required immediate action and he believed that something had
to be done on an emergency basis because of safety considerations. (Id., ¶ 79.)
28.

The condition of the asphalt path with a sinkhole/washout did not meet Academy

safety standards. (February 2014 Order, Findings of Additional Fact, ¶ 78.)
29.

Dr. Mihlbachler testified that the condition of the path with the sinkhole would be

a safety hazard for users of the path if it were an official Academy trail. Thus, if it were
an official trail, he would have reported the condition of the path to maintenance to get it
repaired. (February 2014 Order, Findings of Additional Fact, ¶¶ 90, 93.)
ii.

The Academy’s Knowledge
a.

30.

Knowledge of the Path and Its Recreational Use

The path was located within the boundaries of the Academy property, and could

be seen from I-25. (February 2014 Order, Undisputed Facts ¶¶ 25, 40.) It was located
within and on the Academy’s real property. (Id., Findings of Additional Fact ¶ 25.)
Aerial photographs (Ex. 13) suggest the path has existed on Air Force Property since at
least the 1960s. (Id. ¶ 39.)
31.

Before Mr. Nelson’s injury, the Academy knew that members of the public used

the path where Mr. Nelson was injured. (February 2014 Order, Findings of Additional
Fact ¶ 37.) The path was used by members of the public for recreational purposes,
such as walking, jogging, and bicycling. (Id., Undisputed Facts ¶ 27.)
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32.

There is evidence of a course of conduct and usage in connection with the

asphalt path before Mr. Nelson’s accident, i.e., the evidence showed that the Academy
knew that people were using the path for recreational purposes and did not affirmatively
preclude people from its use. (February 2014 Order, Conclusions of Law ¶ 74; Tenth
Cir. Op., p. 8.)
33.

Dr. Brian Mihlbachler knew of the existence and condition of the path. (February

2014 Order, Findings of Additional Fact ¶ 86.)
34.

Dr. Mihlbachler had seen five to six people use the path for walking, jogging, and

biking prior to September 3, 2008. (February 2014 Order, Findings of Additional Fact
¶ 87.)
35.

The public, including Mr. Nelson, could access the asphalt path before

September 3, 2008, because there were no barricades, barriers, or fences to block the
entrance to the path. (February 2014 Order, Findings of Additional Fact ¶ 48.)
36.

Mr. Nelson had used the path before his accident, and knew that other people

used the path. (February 2014 Order, Conclusions of Law ¶ 75.) He believed that the
Academy permitted him and other members of the public to use the path for recreational
purposes. (Id., Findings of Additional Fact ¶ 12.)
37.

The Academy did not designate or maintain the path as a recreational trail.

(February 2014 Order, Findings of Additional Fact ¶ 49.) It also did not take any
affirmative action or steps to make the asphalt path available to the public or James
Nelson. (See id. ¶¶ 52, 53, 55, 56.) It did not intend for the path to be a recreational
trail, and it was not authorized for recreational use. (Id. ¶¶ 56, 57.)

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38.

Despite considering the path closed to the public and considering public users of

the path to be unauthorized or trespassers, the Academy took no action prior to
September 3, 2008, to prevent the public from entering its property to use the asphalt
path. (Id., Undisputed Facts ¶ 19; Findings of Additional Fact ¶ 59.) The Academy also
never prevented usage of the path or took steps to close it off to the public. (Tenth
Circuit Op., p. 8; see also February 2014 Order, Findings of Additional Fact ¶ 64.)
39.

While there were “Warning” signs prohibiting entry to Academy property

posted around the perimeter of the base, there is no evidence that they were
conspicuous to persons entering the property to access the asphalt path. (February
2014 Order, Findings of Additional Fact ¶ 46.)
40.

At the time Mr. Nelson was injured on September 3, 2008, the north entrance to

the asphalt path was marked with a sign that read: “Bicycle Path, No Motorized
Vehicles.” (February 2014 Order, Undisputed Facts ¶ 20.) The United States knew the
“Bicycle Path” sign was placed near the entrance to Academy boundaries, which gave
the impression the path was open for general public use. (Tenth Circuit Op., p. 8.) The
sign was located near an opening in the Academy’s boundary fence, through which
access to the path was possible. (February 2014 Order, Findings of Additional Fact
¶ 67.) There was a similar sign near the south entrance to the path. (Id. ¶ 68.)
41.

Academy representatives Debbie Barrett and Greg Long testified that

because of the existence and placement of the “Bicycle Path, No Motorized Vehicles”
signs, third parties would reasonably believe that they were authorized or invited to go
on the path and ride their bicycle. (February 2014 Order, Findings of Additional Fact
¶ 73.)
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42.

A reasonable person would likely believe the Bicycle Path signs were, at the very

least, authorized by the Academy, given that the signs were next to and clearly related
to the paved path on Academy property. (February 2014 Order, Conclusions of Law
¶ 75.) Academy officials admitted that there is no way the public could have known that
the signs were not Academy signs. (Id.)
43.

The evidence supports a finding that the Bicycle Path signs would allow

members of the public, including Mr. Nelson, to reasonably believe that the Academy
consented to the public’s use of the path for biking. (February 2014 Order, Conclusions
of Law ¶ 75.) This is also supported by the fact that the path was open to and
accessible by the public through an engineered entry point/opening in the Academy’s
boundary fence. (Id.) Moreover, the “Bicycle Path” supports a finding of an implied
representation by the Academy that the public was requested, expected, or intended to
enter or remain on the asphalt path. (Id. ¶ 69.)
44.

The Academy did not remove the “Bicycle Path, No Motorized Vehicles” signs

prior to September 3, 2008, though it had the opportunity to do so, and could have done
so at any time without the need for a work order. (February 2014 Order, Undisputed
Facts, ¶¶ 21-26, Findings of Additional Fact ¶¶ 97-99; Tenth Circuit Op., p. 8.)
45.

Prior to Mr. Nelson’s injury, CDOT “offered to remove the sign, but the Academy

ignored that offer.” (Tenth Circuit Op., p. 8.)
b.
46.

Knowledge of the Condition at Issue

Dr. Mihlbachler was employed from 2000 - 2008 by the United States Fish and

Wildlife Service as a biologist. (February 2014 Order, Undisputed Facts ¶ 40.) He was
stationed at the Academy as a Natural-Resources Manager (id. ¶ 41) pursuant to the
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Sikes Act, which tasks federal agencies with the development and implementation of
natural resource management plans. (See United States’ Proposed Findings of Fact
and Conclusions of Law and Br. in Support, Ex. A [hereinafter “Def.’s Ex. A”], Trial
testimony of Dr. Mihlbachler [“Mihlbachler Testimony”], 47:4-24). His job was to
implement the Academy’s natural resources management plan. (Id. 47:21-24.)
47.

Dr. Mihlbachler’s job at the Academy involved going out and surveying areas

throughout the Academy and monitoring the landscape. (February 2014 Order,
Undisputed Facts ¶ 42.) He had responsibility for managing the natural resources on
the Academy’s 18,500 acres. (Id.) Dr. Mihlbachler had additional responsibility to
determine the impact of erosion on an endangered species, the Preble’s Meadow
Jumping Mouse. (Id.) He was managing a number of multi-million dollar erosion
remediation projects in the area. (Id.)
48.

Dr. Mihlbachler was part of a monitoring program around the Academy

Installation, monitoring “some pretty serious erosion and sedimentation issues, loss of
habitat along some of the major drainages coming into the installation.” (Def.’s Ex. A,
Mihlbachler Testimony, 50:3-10.) Consistent with this, on August 20, 2008, when Dr.
Mihlbachler encountered and photographed the sinkhole, his “purpose out there on that
day” was photo-documenting, “eyes on the ground, looking at what’s happening along
our boundary and downstream from there.” (Id. 50:11-14.)
49.

Thus, Dr. Mihlbachler also was looking at the erosion effects on Academy

property located on the east side of I-25. (February 2014 Order, Undisputed Facts
¶ 43.) He had responsibility for investigating the erosion problems and had observed
these problems in the area, including the east side of I-25, for many years. (Id.,
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Findings of Additional Fact ¶ 84; see also Am. Ex. 2 to Pl.’s Proposed Findings of Fact
and Conclusions of Law, With Argument, ECF No. 216-1 [“Am. Ex. 2”], Mihlbachler
Testimony 6:15-25—testifying that part of his job duties have “included keeping watch
on those eastern areas” of the Academy “to see how off-campus water flows might be
impacting the property”, as “[t]he academy, since the mid-1990s, identified that they
were having serious erosion and -- issues along the eastern boundary, in particular due
to the expansion of development along the boundary, which resulted in a lot of new
impervious surface, which contributes to more frequent flows in those drainages, as well
as higher volumes and rates of flow”; see also Def.’s Ex. A, Mihlbachler Testimony,
13:17-21—“[A]s a person with natural resource responsibilities that encompass virtually
all the landscape within the boundaries of the academy, [Dr. Mihlbachler] had “ample
opportunity to survey areas such as the areas east of I-25”.)
50.

Dr. Mihlbachler testified that as part of his duties, he spends a large amount of

time in the field and driving into remote areas of the Academy where the security forces
and others do not routinely go. As a result of this, he is another source of information
regarding maintenance and infrastructure. (February 2014 Order, Findings of Additional
Fact ¶ 83). Dr. Mihlbachler was part of the “eyes on the ground” for the Academy,
checking areas that the security forces did not get to that often and reporting to the
appropriate party if issues were identified. (Id., ¶ 80.)
51.

On August 20, 2008, as part of his work for the Academy, Dr. Mihlbachler took a

number of photographs of erosion problems caused by storm water draining onto the
Academy property from residential neighborhoods east of the Academy. (February
2014 Order, Undisputed Facts ¶¶ 43, 44.)
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52.

Dr. Mihlbachler photographed the sinkhole on the path on August 20, 2008, two

weeks before Mr. Nelson was injured by that sinkhole. (February 2014 Order,
Undisputed Facts ¶ 45.) Dr. Mihlbachler was the only Academy employee who was
actually aware of the sinkhole before the September 3, 2008, accident. (Id.)
53.

Dr. Mihlbachler did not report the sinkhole or show the photographs to anyone

else before Mr. Nelson was injured on September 3, 2008. (February 2014 Order,
Undisputed Facts ¶ 47.)
54.

He testified that the trail management plan did not reference any asphalt surface

trails. (Def.’s Ex. A, Mihlbachler Testimony, 55:9-16.) He further testified that to his
understanding there was no rule or regulation in the trail management plan or otherwise
that would have required fixing a hole on an unofficial path such as the asphalt path.
(February 2014 Order, Findings of Additional Fact, ¶ 91; Def.’s Ex. A, Mihlbachler
Testimony, 55:4-5.)
55.

However, Dr. Mihlbachler also testified that the Academy’s trail management

plan contains guidelines about what constitutes a safe trail for the users, and that
“criteria would have applied in this situation [to the asphalt path] had I known that it was
designed – . . . as a trail, yes.” (Def.’s Ex. A, Mihlbachler Testimony, 75:10-17).
56.

Moreover, while Dr. Mihlbachler had never seen the bicycle path sign near the

north end of the path (February 6, 2014 Order, Undisputed Facts ¶ 52), he testified that
if he been aware of the sign or aware that the path was a recreational trail that was
getting used, he would have either removed the path because it did not fit with the
official Trails Management Plan or it would have been incumbent on him to take the
proper action to prevent a safety hazard. This would have been required as part of his
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duties. (Id., Findings of Additional Fact ¶ 93.) He would have thought that the Academy
was sanctioning the use of that trail for recreational purposes and, as Trails Manager, it
would have been incumbent upon him “to take the appropriate action to keep the users
of that trail safe.” (Def.’s Ex. A, Mihlbachler Testimony, 75:6-9.)
57.

Dr. Mihlbachler testified that he believes that there is an expectation these days

for all government employees to say something if they see something. (February 2014
Order, Findings of Additional Fact ¶ 96.)
58.

I previously found, and now reaffirm, that for all intents and purposes,

Dr. Mihlbachler functioned as an Academy employee, and had responsibilities related
to Academy safety and security and reporting safety concerns. (February 2014 Order,
Findings of Additional Fact ¶¶ 81, 82; Conclusions of Law ¶ 71.)
59.

Dr. Mihlbachler chose not to do anything about the sinkhole when he

encountered it and photographed it. His decision not to do anything about the sinkhole
or report it to anyone was based on his perception that it was on the CDOT and MVEA
easement for their use and was not the Academy’s responsibility. (February 2014
Order, Findings of Additional Fact ¶ 94.) He “didn’t see any sense of urgency to have
the hole repaired by them or the Academy.” (Def.’s Ex. A, Mihlbachler Testimony,
55:22-56:5; see also February 2014 Order, Undisputed Facts ¶ 51.)
60.

Thus, “in terms of the significance of the damage relative to other areas” that he

was working on, Dr. Mihlbachler “didn’t see a need for the academy necessarily to take
action on the damage that had occurred on the trail.” (Am. Ex. 2, Mihlbachler
Testimony 61:9-13.) He “would look more to Mountain View Electric and CDOT to

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identify the damage and make a determination about how they needed to proceed on
any sort of maintenance or repair to maintain their easement.” (Id. 61:14-17.)
61.

Dr. Mihlbachler had seen CDOT and MVEA service crews using the path as a

service road from 2000-2008. (February 6, 2014 Order, Undisputed Facts ¶ 49.)
62.

Dr. Mihlbachler’s decision not to do anything about the sinkhole on the path also

was based on the fact that he did not think people were using the path for recreational
purposes. (February 2014 Order, Undisputed Fact ¶¶ 50; Findings of Additional Fact
¶¶ 92, 94). In his mind at that time, he “didn’t feel the Air Force Academy considered it
to be a trail of any sort.” (Def.’s Ex. A, Mihlbachler Testimony, 44:8-9.) When he
photographed the path, “at that time I wasn’t looking at this as a bike path. Again, I was
looking at this as a service path either for” MVEA or CDOT. (Id., 24:21-24).
63.

As he did not think the path was being used by pedestrians or bikers, the

thought never occurred to Dr. Mihlbachler that the damage to the path would create a
safety hazard. (February 6, 2014 Order, Findings of Additional Fact ¶ 92.) He did not
think that the hole was likely to cause anyone harm. (Def.’s Ex. A, Mihlbachler
Testimony, 56:21-23; 57:25-58:3.)
64.

Dr. Mihlbachler also did not believe the path was an official recreational trail, or

that outside users were invited or permitted to use the path for recreation. (February
2014 Order, Undisputed facts, ¶ 50).
65.

When he saw the sinkhole on August 20, 2008, Dr. Mihlbachler did not see any

members of the public on the path. (Def.’s Ex. A, Mihlbachler Testimony, 26:19-21).
66.

Dr. Mihlbachler had been stationed at the Academy for over eight years before

the accident. (Def.’s Ex. A, Mihlbachler Testimony, 26:22-24), and he had lived in the
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Colorado Springs area for ten to eleven years. (Id. 12:22-13:1). During this period, he
only saw members of the public use the path on five or six occasions, despite the fact
that he traveled on the path once a month or so. (February 2014 Order, Findings of
Additional Fact ¶¶ 87, 89.) He saw most of these people before 2005, when Struthers
Road was built. (Id., ¶ 87; Def.’s Ex. A, Mihlbachler Testimony, 27:7-10.) The
construction of Struthers Road provided an alternate route across Black Forest Creek
so that Dr. Mihlbachler thought the traffic probably moved off the path. (February 2014
Order, Findings of Additional Fact ¶ 87; Def.’s Ex. A, Mihlbachler Testimony, 27:4-16.)
67.

Dr. Mihlbachler only saw people using the path when he was off-duty, driving

along I-25. (Defs.’ Ex. A, Mihlbachler Testimony, 58:12-19.) He never saw anyone
using the path at night. (February 2014 Order, Findings of Additional Fact ¶ 88).
68.

Dr. Mihlbachler understood at the time he saw the sinkhole that he had discretion

for making decisions about whether to fix eroded areas he encountered on an unofficial
path. (Def.’s Ex. A, Mihlbachler Testimony 55:17-21.)
69.

Dr. Mihlbachler did not consider the sinkhole a high priority relative to all the

other erosion issues that he was dealing with along the eastern boundary. He
considered the sinkhole insignificant in relation to the large-scale erosion problems in
the area. (February 2014 Order, Undisputed Facts ¶ 46; Findings of Additional Fact
¶ 85).
iii.
70.

Failure to Guard or Warn Against the Dangerous Condition

I previously found, and now reaffirm herein, that the Academy did not take any

measures to guard against or warn of the sinkhole condition prior to September 3, 2008.
(February 6, 2014 Order, Findings of Additional Fact ¶ 60; see also Conclusions of Law
-18-

¶ 23—“the evidence shows that the [Academy] did not maintain the path, repair it, or
warn against the dangerous condition when it was found because it believed that CDOT
or MVEA were responsible for the path”, ¶¶ 28, 33, 35.) Indeed, this was stipulated to
by the parties. (Id., Conclusions of Law ¶ 71.)
71.

I also previously found, and reaffirm herein, that the Academy unreasonably

failed to exercise reasonable care to protect against a danger—the sinkhole on the path
caused by erosion—of which it actually knew. (February 6, 2014 Order, Conclusions of
Law ¶ 70.) The evidence demonstrates that the Academy knew there was extensive
drainage and erosion problems in the area where the path was located, knew through
Dr. Mihlbachler of the actual existence of the sinkhole prior to Mr. Nelson’s accident,
admitted that the sinkhole was a dangerous condition, and did nothing to protect anyone
from the danger that the sinkhole presented to those using the path for biking or other
purposes. (Id.) I found from the evidence that the Academy failed to use reasonable
care to protect against the danger on the property, and that its unreasonable failure to
exercise reasonable care with regard to the sinkhole was the cause of Mr. Nelson’s
injuries. (Id.)
72.

It is undisputed that the path was located within the boundaries of the Academy

property. (Id., Undisputed Facts, ¶¶ 1, 3, 5.)
III.

CONCLUSIONS OF LAW
A.

1.

The CRUS Exception and Statutory Construction Principles

The CRUS places the risk of injury for recreational activity upon the recreational

user rather than the landowner, see Colo. Rev. Stat. § 33-41-103, subject to certain
specifically enumerated exceptions to its limitations on landowner liability. One of these
-19-

exceptions to liability is a landowner’s “willful or malicious failure to guard or warn
against a known dangerous condition, use, structure, or activity likely to cause harm.”
Colo. Rev. Stat. § 33-41-104(1): (“Nothing in this article limits in any way any liability
which would otherwise exist: (a) For willful or malicious failure to guard or warn against
a known dangerous condition, use, structure, or activity likely to cause harm”.)
2.

Colo. Rev. Stat. § 33-41-105 also recognizes landowner liability for such conduct,

stating “[n]othing in this article shall be construed to . . . affect in any manner any liability
for willful or malicious failure to guard or warn against a known dangerous condition,
use, structure, or activity likely to cause harm . . ..”)
3.

I previously found that Mr. Nelson was an invitee or licensee under the Colorado

Premises Liability Act. (February 2014 Order, Conclusions of Law, ¶¶ 68, 72.) The
Tenth Circuit confirmed that the Academy knowingly permitted Mr. Nelson to use the
bike path; thus he was a licensee or invitee. Although the Academy could not be liable
for negligence under CRUS, the Tenth Circuit found that the Academy would be liable
despite the limitations on liability in the CRUS if it willfully or maliciously failed to guard
or warned against a known dangerous condition. (Tenth Circuit Op., pp. 11-12.)
4.

The Colorado appellate courts have not specifically construed this section of the

CRUS. “When the federal courts are called upon to interpret state law, the federal court
must look to the rulings of the highest state court, and, if no such rulings exist, must
endeavor to predict how that high court would rule.” Johnson v. Riddle, 305 F.3d 1107,
1118 (10th Cir. 2002). “‘If there be no decision by that court then federal authorities
must apply what they find to be the state law after giving proper regard to relevant

-20-

rulings of other courts of the State.’” Folks v. State Farm Mut. Automobile Ins. Co., 299
F. App’x 748, 757 (10th Cir. 2007) (quotations and internal quotation marks omitted).
5.

The objective of a court interpreting a state statute is to effectuate the intent and

purpose of the legislature. Roup v. Commercial Research, LLC, 349 P.3d 273, 275
(Colo. 2015); Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo. 1991).
Statutory interpretation is a question of law. W. Fire Truck, Inc. v. Emergency One, Inc.,
134 P.3d 570, 573 (Colo. App. 2006).
6.

The court should look to the statutory language and give words and phrases their

“plain and ordinary meaning”. Climax Molybdenum Co. v. Walter, 812 P.2d 1168, 1173
(Colo. 1991). The statute should, where possible, be construed “as a whole, giving
meaning to all its parts.” Folks, 299 F. App’x at 757; see also Reno v. Marks, 349 P.3d
248, 253 (Colo. 2015) (the court must “examine the statutory language in the context of
the statute as a whole and strive to give ‘consistent, harmonious, and sensible effect to
all parts’”) (quotation omitted). “[I]f the language of the statute is clear and the intent of
the General Assembly may be discerned with certainty, [the court] need not resort to
other rules of statutory interpretation.” W. Fire Truck, Inc., 134 P.3d at 573.
7.

I now turn to the pertinent provision of the CRUS, Colo. Rev. Stat. § 33-41-

104(1)(a), examining each section of the statute to determine its applicability.
B.

8.

Whether the Washout/Sinkhole Was A Dangerous Condition Likely To
Cause Harm

“Dangerous condition” is not defined in the CRUS, but a plain meaning can be

ascribed to that term. The dictionary defines “dangerous” as “exposing to or involving
danger; able or likely to inflict injury or harm.” https://www.merriam-webster.com/

-21-

dictionary/dangerous. “Danger” is defined as “exposure or liability to injury, pain, harm,
or loss.” Id. The Colorado courts have confirmed this meaning of “danger.” See Fleury
v. IntraWest Winter Park Operations Corp., No. 13CA0517, 2014 WL 554237, at *3
(Coo. App. Feb. 13, 2014) (the common meaning of danger is a “[p]eril; exposure to
harm, loss, pain, or other negative result”) (quoting Black's Law Dictionary 450 (9th ed.
2009)).
9.

Also, the Colorado legislature defined “[d]angerous condition” in the Colorado

Governmental Immunity Act as “a physical condition of a facility or the use thereof that
constitutes an unreasonable risk to the health or safety of the public. . . .” Colo. Rev.
Stat. § 24-10-103(1.3). I adopt these definitions of the word “dangerous”.
10.

I previously found in my February 2014 Order that the sinkhole/washout was a

dangerous condition. (February 6, 2014, Order, Conclusions of Law, ¶¶ 70, 71, 77). I
found that the sinkhole on the path caused by erosion was a danger that the Academy
unreasonably failed to exercise reasonable care to protect against. (February 6, 2014
Order, Conclusions of Law ¶ 70; see also Conclusions of Law ¶¶ 33, 35—noting that the
sinkhole was a “specific known hazard.”) I adopt and incorporate my prior findings that
the sinkhole/washout that existed on the Academy property was a dangerous condition.
11.

I also find that the sinkhole was a dangerous condition “likely to cause harm” to

users of the path, and make the following additional conclusions concerning this issue.
12.

The evidence shows that the path was an asphalt path, designated for bicycle

use as indicated by Bicycle signs near the path. As such, any reasonable person,
including the Academy, would understand that people would be riding bicycles on the
path, and the Academy in fact knew that people used the path for bicycle riding.
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13.

The sinkhole that Mr. Nelson encountered during the accident was the result of

wash-out/erosion problems in the area, and was caused by off-site water flow onto
Academy property that overwhelmed the culvert running under the path.
14.

This off-site water flow onto Academy property in the area of the asphalt path

was a known condition and problem that the Academy had been investigating,
documenting, and addressing for many years before Mr. Nelson’s accident on
September 3, 2008.
15.

The sinkhole/washout condition was substantial. It encompassed the entire

width of the asphalt path, and photographs presented at trial showed the depth and
magnitude of the sinkhole. (Pl.’s Exs. 8-1, 8-3, 8-6, 9-2.)
16.

Evidence presented at trial also established that the sinkhole was difficult to see.

Photographs of the site indicate the washout/sinkhole was located in a low area near
bushes and other vegetation that created shadows. Further, witness Jesse Kurtz, who
was jogging on the path the morning after Mr. Nelson’s accident, thought the sinkhole
was water until he was significantly closer to it. I previously found and continue to find
Mr. Kurtz’ testimony on this issue to be credible. I also find that his testimony is
substantiated by photographs presented at trial as exhibits. (Pl.’s Ex. 8-2, 8-4, 9-1.)
17.

Accepting the United States’ argument that the term “likely” means a high

probability of occurring, or “in all probability”, and requires more than a potential hazard,
I find that a sinkhole on a recreational path with significant size and depth, that covers
the entire width of the path and is hard to see, and is on a path that the Academy knew
was used by bicyclers, would have a high probability of causing harm to a person riding
their bicycle on the path. As I noted in the February 2014 Order, “a sinkhole of the
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magnitude in this case (covering the width of the path) is not the kind of hazard
ordinarily presented on the property of the type involved.” (Id., Conclusions of Law
¶ 77.) Indeed, the sinkhole/washout was in fact dangerous and did in fact cause harm.
When Mr. Nelson encountered the sinkhole/washout on his bicycle, he was flung off his
bicycle onto the asphalt, causing him to suffer serious injuries and his bicycle to have
substantial damage.
18.

My finding that the sinkhole was a dangerous condition likely to cause harm is

supported by admissions of Academy representatives at trial. Greg Long testified that
the sinkhole was a dangerous emergency situation that required immediate action, and
he believed that something had to be done on an emergency basis because of safety
considerations. Jeffrey Thoma testified that the condition of the path with the sinkhole/
washout was dangerous and hazardous for users of the path. Dr. Mihlbachler testified
that the condition of the asphalt path with the sinkhole, which he observed before
Mr. Nelson’s accident, would be a safety hazard for users of the path—if it were an
official Academy trail. The fact that the path was not an official Academy trail, however,
does not make it any less of a dangerous condition to the people using it for recreational
purposes. Indeed, the evidence established that the condition of the asphalt path with a
sinkhole did not meet Academy safety standards. Similarly, Dr. Mihlbachler’s subjective
belief that it was not a hazard based on his belief that the path was not being used for
recreational purposes or was a service road used by CDOT or the MVEA is not relevant
to whether the path was, in fact, dangerous and likely to cause harm.
19.

The United States argues, however, that in assessing whether a “known

dangerous condition” is “likely to cause harm,” it is assumed that recreational users will
-24-

act with reasonable care. Here, however, I found in my February 2014 Order, and
reaffirm herein, that Mr. Nelson was not at fault or negligent. (February 2014 Order,
Conclusions of Law ¶ 81-86.) Thus, there is no evidence that he failed to act with
reasonable care. While the United States noted in its proposed Findings of Fact and
Conclusions of Law that Dr. Mihlbachler never saw anyone use the path at night (ECF
No. 223, at p. 28 ¶ 33), I found that it was still light outside when Mr. Nelson
encountered the sinkhole, and that he would not have needed artificial illumination while
riding his bicycle on the path. (February 2014 Order, Conclusions of Law ¶ 82; see also
Findings of Additional Fact, ¶¶ 16, 19, 20.)
20.

In conclusion, I find that the evidence establishes that the sinkhole on the path on

Academy property constituted a dangerous condition likely to cause harm.
C.
21.

Whether the United States Knew of the Path and the Dangerous Condition

The Academy knew the path existed for decades prior to September 3, 2008.

There is evidence that the asphalt path could be seen from I-25. The Academy further
knew of the significant erosion problems in the immediate area of the path. The
evidence showed that significant off-site water flow onto Academy property in the area
of the asphalt path was a known condition and problem that the Academy had been
addressing for many years before September 3, 2008.
22.

The United States admitted that, before Mr. Nelson’s accident, it knew members

of the public used the path where Mr. Nelson was injured. (Pl.’s Ex. 107, Requests for
Admission, #8). Furthermore, as part of the law of the case as established by the Tenth
Circuit, the Academy knew the public was using the bike path for recreational
purposes—a necessary finding for the Tenth Circuit’s conclusion that the CRUS applied.
-25-

(Tenth Circuit Op., p. 11—“The Academy knew of the public’s use of the path and
declined the opportunity to end that use.”)
23.

The United States argues, however, that the court cannot consider the collective

knowledge or collective intent of the Academy regarding the sinkhole. It asserts that, in
the context of a claim under the FTCA and based on the text and legislative intent of the
CRUS exception, the Plaintiffs must show that a particular federal employee acted in a
manner that constitutes a “willful or malicious failure to guard or warn against a known
dangerous condition . . . likely to cause harm.” Colo. Rev. Stat. § 33-41-104. I find that
this argument is not supported by the text of the statute, and the United States has not
cited any authority that this is the legislative intent of the statute. Thus, I turn to whether
the United States’ position is supported by the fact that this case is brought under the
FTCA.
24.

The FTCA provides a limited waiver of sovereign immunity such that the United

States can be held liable for injuries or losses “caused by the negligent or wrongful act
or omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b). Thus, as the United States acknowledges, its
liability essentially arises under a theory of respondeat superior. Fowler v. United
States, 647 F.3d 1232, 1237-38 (10th Cir. 2011). “[T]he Government’s liability under
the FTCA is limited to that of a private employer under like circumstances.” Haceesa v.
United States, 309 F.3d 722, 728-29 (10th Cir. 2002).

-26-

25.

Under the respondeat superior doctrine, “an employer or principal is liable for

acts that its employee or agent commits on behalf of the employer or principal within the
scope of the employment or agency.” Smith v. Multi-Fin. Sec. Corp., 171 P.3d 1267,
1271 (Colo. App. 2007). It is “‘based on the theory that the employee acts on behalf of
the employer when the employee is acting within the scope of his authority.’” Fowler,
647 F.3d at 1238 (quotation omitted). The liability of the employee is imputed to the
employer in that situation. See McCall v. Roper, 685 P.3d 230, 232 (Colo. App. 1984).
26.

While the United States argues that the collective knowledge of its employees or

agents is not imputed to the United States in an FTCA case, I find that this is not
supported by any case under the FTCA that has analyzed the “willful or malicious”
exception to liability under the recreational use statutes. Instead, those cases looked at
the collective knowledge of the United States agency in deciding whether its conduct
was willful or malicious, and did not focus on whether any particular employee’s conduct
met that standard. See, e.g., Rost v. United States, 803 F.2d 448, 451-452 (9th Cir.
1986) (looking at the knowledge of service employees who knew of the condition for at
least a year before the accident and finding as a result that “the Service consciously
failed to act because it had other priorities”) (emphasis added); Mandel v. United States,
719 F.2d 963, 967 (8th Cir. 1983) (looking at recommendation of a ranger “together with
the knowledge of the National Park Service of the existence and hazard of submerged
rocks” and its failure to know or warn of submerged rocks to determine whether the
Service was liable under the willful or malicious exception) (emphasis added); Sulzen v.
United States, 54 F. Supp. 2d 1212, 1218 (D. Utah 1999) (looking at knowledge and
testimony of a park ranger and a Forest Supervisor as well as a Forest Service
-27-

memoranda indicating that “the task force . . . was concerned “that unrecorded near
misses have occurred at Hanging Rock” to determine if the Forest Service knew of the
falling rocks” before the accident”) (emphasis added); Soto v. United States, 748
F. Supp. 727, 729-730 (C.D. Cal. 1990) (finding actual knowledge that a peril existed
based on evidence that Forest Service personnel assisted in recovery of the body, a
recommendation by a district employee about a warning sign, and fact “District
personnel” had observed diving at the pools).3 I find these cases persuasive, and they
convince me that I may look at the collective knowledge of the Academy in regard to the
willful and malicious exception to the CRUS.
27.

Looking at what the various employees knew collectively to determine the United

States’ knowledge makes sense in the context of a large organization such as a federal
agency where information is often compartmentalized amongst different departments.
In that situation, an organization should, in my opinion, be charged with the collective
knowledge of its employees, particularly where the United States is seeking to avoid
liability under a narrow exception to a state recreational use statute. As explained by
one court in finding that a corporation may be charged with the collective knowledge of
its employees:
Corporations often compartmentalize information, whether for efficiency,
practicality, or both. But such compartmentalization does not shield a
company from knowledge maintained by employees in such a structure.

3

See also Termini v. United States, 963 F.2d 1264, 1267-1268 (9th Cir. 1992); Umpleby v. United
States, 806 F.2d 812, 815-16 (8th Cir. 1986); Ware v. United States, No. C-92-1744 EFL, 1994 WL 46739,
at *3-7 (N.D. Cal. Feb. 4, 1994); Stephens v. United States, 472 F. Supp. 998, 1003, 1016 (C.D. Ill. 1979).

-28-

New York v. United Parcel Serv., 15-cv-01136 (KBF), 2017 WL 1135257, at *65
(S.D.N.Y. March 24, 2017) (quotation omitted).
28.

Section 5.03 of the Restatement (Third) of Agency also supports this concept. It

notes that “[o]rganizations generally function by subdividing work or activities into
specific functions that are assigned to different people. Id. “An organization’s large size
does not in itself defeat imputation, nor does the fact that an organization has structured
itself internally into separate departments or divisions.” Id. “Organizations are treated
as possessing the collective knowledge of their employees and other agents, when that
knowledge is material to the agents’ duties. . .”).4
29.

My finding that the collective knowledge of the Academy may be considered is

also supported by the Colorado Court of Appeals’ decision in Jacobs v. Commonwealth
Highland Theatres, Inc., 738 P.2d 6 (Colo. App. 1986). In assessing whether exemplary
damages was appropriate in a personal injury action brought against the theatre owner,
the court looked collectively at the fact that the “defendants’ agents knew of the danger”
and took no steps to correct it. Id. at 10. It then concluded “[o]n the basis of evidence
presented concerning defendant’s awareness of the hazard and its repeated failure to
remedy it . . . that plaintiff presented a prima facie case of wanton and reckless
disregard which would support an award of exemplary damages.” Id.
30.

While the United States has cited cases declining to consider the collective

knowledge of the corporation’s agents, these cases involved a different situation;
4

See also United States v. Bank of New England, 821 F.2d 844, 856 (1st Cir. 1987); SEC v.
Tropikgadget FZE, 146 F. Supp. 3d 270, 280 (D. Mass. 2015); Dixie Bonded Warehouse and Grain Co.,
Inc. v. Allstate Fin. Corp., 755 F. Supp. 1543, 1553 (M.D. Ga. 1991); United States v. Philip Morris USA,
Inc., 449 F. Supp. 2d 1, 894 (D.D.C. 2006); Commonwealth v. Springfield Terminal Ry. Co., 951 N.E.2d
696, 706 (Mass. App. 2011).

-29-

namely, an intentional tort. Thus, in Helf v. Chevron U.S.A., Inc., 361 P.3d 63 (Utah
2015), a former employee who was injured as a result of exposure to toxic gases sued
the employer under the intentional injuries exception to the exclusive remedies provision
of the Workers’ Compensation Act. To prevail in her suit she had to show that an agent
of the employer intentionally caused her injury. Id. at 69. The court found in that
situation that “the collective knowledge of multiple employees cannot ‘establish the state
of mind requisite to the commission of an intentional tort of a corporation.’” Id.
(quotation omitted). Similarly, in Woodmont, Inc. v. Daniels, 274 F.2d 132, 137 (10th
Cir. 1959), the Tenth Circuit acknowledged that it would allow in some cases a
corporation to be “held constructively liable for the composite knowledge of all its
agents, whether acting in unison or not”, but was unwilling to do so where an intentional
tort was alleged—in that case fraud. These cases do not, in my opinion, impact this
case that does not involve an intentional tort. Instead, this case is more akin to the
Jacobs case where the court was assessing whether the theatre’s conduct was willful
and reckless in determining whether an award of exemplary damages was appropriate.
31.

Even if I were to disregard the collective knowledge of the Academy, however,

the evidence shows that Dr. Mihlbachler knew of the significant erosion problems in the
immediate area of the path and its condition prior to Mr. Nelson’s accident. Indeed,
Dr. Mihlbachler’s work included responsibility for investigating those substantial erosion
and drainage problems. As part of his duties he was in the area of the path about once
a month. Dr. Mihlbachler also had seen people use the path for walking, jogging, and
biking prior to September 3, 2008.

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32.

On August 20, 2008, as part of his work for the United States, Dr. Mihlbachler

took a number of photographs of erosion problems caused by storm water draining onto
the property from residential neighborhoods east of the property. The photographs
Dr. Mihlbachler took on that day included photographs specifically documenting the
sinkhole/washout of the asphalt path. The photographs show the sinkhole/washout of
the path in the same condition as it was when Mr. Nelson encountered it two weeks
later on September 3, 2008. (Cf. Pl.’s Ex. 2—taken by Dr. Mihlbachler—with Pl.’s Exs.
8, 9.)
33.

The sinkhole/washout on the path that Mr. Nelson encountered during the

accident was the result of the erosion caused by the off-site water flows onto Academy
property—the very problem that the Academy knew of and was investigating through
Mr. Mihlbachler on the day he discovered this dangerous condition on the path. Indeed,
Dr. Mihlbachler was in that area specifically for the purpose of evaluating the erosion
effects of groundwater flow. Thus, the United States, through Dr. Mihlbachler, was
investigating erosion problems and specifically found on August 20, 2008, an
erosion problem that created a dangerous condition on the asphalt path; namely, the
sinkhole/washout.
34.

Dr. Mihlbachler believed himself to function essentially as an Academy employee

and I previously concluded that, for all intents and purposes, Dr. Mihlbachler functioned
as an Academy employee and had responsibility for reporting safety concerns.
(February 2014 Order, Findings of Additional Fact ¶ 81; Conclusions of Law ¶ 71).
These findings and conclusions are reaffirmed.

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35.

I conclude, as I previously did, that Dr. Mihlbachler was an agent of the

Academy, and his knowledge of the sinkhole/ washout is imputed to the Academy by
operation of law. (February 2014 Order, Conclusions of Law ¶ 71). See People v.
Morrow, 682 P.2d 1201, 1206-1207 (Colo. App 1983) (“‘[T]he rule, established in this as
well as other jurisdictions, is that the knowledge of the agent is knowledge of the
principal, when the agent acts within the scope of his authority’”) (quoting Weghorst v.
Cnty. Fire Ins. Co., 45 P.2d 624 (1935)); Hummel v. First Nat'l Bank, 32 P. 72, 75 (Colo.
App. 1892) (principal is chargeable with information acquired by agent).
36.

Accordingly, I conclude that the United States, including its representative

Dr. Mihlbachler, knew that the path existed, knew significant erosion problems existed in
that area, and specifically knew on August 20, 2008, two weeks before Mr. Nelson was
injured, of the existence of the dangerous condition on the path caused by erosion.
D.

37.

Whether the Academy Guarded or Warned Against The Known
Dangerous Condition.

The parties stipulated and the evidence is undisputed that the United States did

not take any measures to guard against the dangerous condition or warn anyone using
the path of the sinkhole/washout condition before Mr. Nelson was injured. That is
dispositive on this issue.
38.

The Academy also took no action to warn about the significant erosion and

washout conditions caused by off-site water flow onto Academy property in the area of
the asphalt path, which was a known condition, or to guard users of the asphalt path in
regard to this condition.

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39.

Moreover, despite knowing of the significant erosion issues and the fact that the

public was using the asphalt path for recreational purposes, the Academy did not
monitor the trail (per the testimony of Mr. Thoma) or maintain it. It also did not identify
the path on its Real Property Record or its official trail system so that it would be
maintained. The Academy instead appeared to mistakenly believe that CDOT and/or
MVEA was responsible for maintenance of the path. However, it is undisputed that the
sinkhole was on its property and it did not need permission from CDOT or anyone to
take action with respect to the sinkhole. (February 2014 Order, Findings of Additional
Fact ¶¶ 33, 27.) I find the same would be true as to other erosion issues. The
Academy thus had the ability to maintain the path and fix the sinkhole. This is also
supported by the testimony of Dr. Mihlbachler that he had discretion to fix the hole but
did not do so because it was not a high priority, the testimony of Mr. Van Winkle that it
was the Academy’s responsibility to fix the path and to upkeep the property, and the fact
that the sinkhole was in fact fixed by the Academy after the accident.
40.

Further, it is undisputed that the Academy took no action prior to September 3,

2008, to prevent the public from entering its property to use the path, despite knowing
that there were significant erosion issues in the area and despite knowing of the
sinkhole/washout approximately two weeks prior to Mr. Nelson’s accident. The
Academy also did nothing to remove the “Bicycle Path, No Motorized Vehicles” signs
prior to September 3, 2008, even though CDOT offered to remove one of the signs, and
even though the Academy knew that the signs gave the impression that the path was
open for general public use. It did nothing to block the path, to close off the engineered
fence opening, or to remove the path prior to September 3, 2008.
-33-

41.

There is no evidence that the Academy could not have taken actions to warn or

guard against the danger before September 3, 2008. In fact, it took immediate action to
guard and warn against the dangerous condition after Mr. Nelson was injured.
42.

In short, as I previously found and now reaffirm, the evidence demonstrates that

the Academy knew there was extensive drainage and erosion problems in the area
where the path was located, knew through Dr. Mihlbachler of the actual existence of the
sinkhole prior to Mr. Nelson’s accident, admitted that the sinkhole was a dangerous
condition, and did nothing to protect anyone from the danger that the sinkhole
presented to those using the path for biking or other purposes. (February 2014 Order,
Conclusions of Law ¶ 70.)
E.

43.

Whether the United States’ Failure To Warn Or Guard Against The Known
Dangerous Condition Likely to Cause Harm Was Willful

Under the CRUS, no immunity is granted to a landowner for a “willful or

malicious” failure to guard or warn against a known dangerous condition, use, structure,
or activity likely to cause harm . . . .” The Ninth Circuit has held that because
recreational use statutes are in derogation of common law rules of tort liability, they
must be narrowly construed and the “courts must take care to avoid an overbroad
interpretation of the statute that would afford immunity that was not intended.” Ducey v.
United States, 713 F.2d 504, 510 (9th Cir. 1983). Furthermore, “exceptions to the
statute . . . must be given the broadest reading that is within the fair intendment of the
language used.” Id. (emphasis in original). This appears to be consistent with Colorado
law, which narrowly construes exceptions to immunity that are in derogation of
Colorado’s common law, and broadly construes exceptions. See St. Vrain Valley Sch.

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Dist. RE-1J v. A.R.L., 325 P.3d 1014, 1019 (Colo. 2014) (“Because governmental
immunity under the Colorado Governmental Immunity Act [“CGIA”] derogates
Colorado's common law, we narrowly construe the CGIA's immunity provisions, and as
a logical corollary, we broadly construe the CGIA's waiver provisions”); Young v.
Brighton Sch. Dist. 27J, 325 P.3d 571, 576 (Colo. 2014). Here, also, the CRUS and its
limitation on liability would appear to be in derogation of Colorado law and would need
to be narrowly construed, while the exception at issue would need to be broadly
construed.
44.

The CRUS does not define the terms “willful” or “malicious”. I first find that

the plain language of the statute does not require a willful and malicious failure to warn
or guard against a dangerous condition. The legislature used the disjunctive “or” to
create two avenues for imposing liability on a landowner: either “willfully” failing to
guard or warn, or “maliciously” failing to guard or warn. See Armintrout v. People, 864
P.2d 576, 581 (Colo. 1993) (“[W]hen the word “or” is used in a statute, it is presumed to
be used in the disjunctive sense, unless legislative intent is clearly to the contrary.”)
There is no indication, clearly or otherwise, that the legislature intended the “or” to be
anything but disjunctive. Indeed, the United States does not dispute this. Moreover,
this is consistent with how the words “willful or malicious” are interpreted in other states
in connection with their recreational use statutes. See, e,g., McGruder v. Ga. Power
Co., 191 S.E.2d 305, 307 (Ga. App. 1972), rev’d on other grounds, 194 S.E.2d 440 (Ga.
1972); Rivero v. Lovington Country Club, Inc., 949 P.2d 287, 290 (N.M. App. 1997)
(quoting Huddleston By and Through Lynch v. Hughes, 843 S.W.2d 901, 908 (Ky. App.
1992), Gudgel, J., concurring)).
-35-

45.

Because of the disjunctive “or,” the terms “willful” and “malicious” have different

meanings. All the words in a statute are presumed to have meaning and significance,
and the courts must interpret statutes in such a way as to give meaning to each word in
the statute. Young, 325 P.3d at 579 (“We presume that the legislature ‘understands the
legal import of the words it uses and does not use language idly, but rather intends that
meaning should be given to each word.’”) (quotation omitted).
46.

Based on the foregoing, I find that the United States can be found liable if it either

willfully or maliciously failed to warn or guard against a known dangerous condition likely
to cause harm. Plaintiffs do not contend that the United States acted maliciously in
connection with its failure to warn or guard against the sinkhole condition. Under
Colorado law, the term “malicious” means an action taken with intent to do harm. See
e.g., Bonidy v. Vail Valley Ctr. for Aesthetic Dentistry, P.C., 232 P.3d 277, 286 (Colo.
App. 2010) (“malice” is defined as “an intention or desire to harm another [usually]
seriously through doing something unlawful or otherwise unjustified” or “revengeful or
unfriendly feelings”) (citing Webster's Third New Int'l Dictionary 1367 (2002)). I find no
evidence that the United States or any of its representative’s acts or failure to act (by
failing to warn or guard against the sinkhole) were done with actual intent to cause
harm. Thus, I concur with the parties that the United States did not act maliciously in
failing to warn or guard against the sinkhole condition.
47.

Under Colorado law, however, “willful” conduct is not the same as “malicious”

conduct. Hohn v. Morrison, 870 P.2d 513, 517 (Colo. App. 1993) (“Malicious intent is
not required for willfulness.”). Nor under Colorado law does malice equate to “willful

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and wanton” conduct. See Colo. Rev. Stat. § 13-21-102(1)(a) (separating concepts of
“malice” and “willful and wanton” conduct.)
48.

Thus, I must determine if the Academy’s conduct was willful in regard to failing to

warn or guard against the dangerous sinkhole condition. Both parties cite the Colorado
Supreme Court’s decision in Pettingell v. Moede, 271 P.2d 1038, 1042 (Colo 1954),
holding that the term “willful” means “voluntary; by choice, intentional, purposeful.” It is
more than negligence. Id.5 As the Pettingell court held: “A failure to act in prevention of
accident is but simple negligence; a mentally active restraint from such action is willful.”
Id. at 1043. Omitting to weigh consequences is simple negligence; refusing to weigh
them is willful.” Id.; see also Hohn, 870 P.2d at 517 (a willful act means an act “‘done
intentionally, knowingly, and purposefully, without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly, heedlessly, or inadvertently’”) (quoting
Black’s Law Dictionary 1434 (5th ed. 1979)).
49.

The United States argues, however, that by using the word “willful” in the CRUS

exception, the legislature intended to impose liability upon a landowner only if he
consciously and intentionally ignored his responsibility to protect recreational users from
known dangerous conditions likely to cause harm. It asserts that “willful” conduct
requires a heightened intent to act purposefully and intentionally in disregard of
knowledge of a substantially certain danger, and that this is supported by consideration
of how Colorado courts have defined “willful and wanton.”

5

“Negligence consists of failure to exercise for the protection of others that degree of care and
caution that would, under the prevailing circumstances, be exercised by an ordinarily prudent person.” Id.
“It consists in doing something which, under the circumstances, should not have been done, or in omitting
to do that which should have been done. Id.

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50.

I find that the term “willful” is not the same as the term “willful and wanton”, a

term of art that has a specific meaning in Colorado law. The Colorado legislature chose
not to use the term “willful and wanton” in the CRUS, even though it has used that term
in other statutes, such as the exemplary damages statute. See Colo. Rev. Stat. § 1321-102(1)(a) (exemplary damages may be awarded where “injury complained of is
attended by circumstances of fraud, malice, or willful and wanton conduct”). Again, the
legislature is presumed to understand the legal import of the words it uses, and “‘does
not use language idly.’” Young, 325 P.3d at 579 (quotation omitted). “‘[E]very word
excluded from a statute must be presumed to have been excluded for a reason.’”
Dubois v. People, 211 P.3d 41, 45 (Colo. 2009) (quotation omitted); see also Specialty
Restaurants Corp. v. Nelson, 231 P.3d 393, 397 (Colo. 2010) (“we will not construe a
statute in a manner that assumes the General Assembly made an omission; rather, the
General Assembly’s failure to include particular language is a statement of legislative
intent”).
51.

There is a distinction between “willful” and “willful and wanton” conduct, as

recognized by Pettingell, a case relied on by both parties. Thus, while willful action
“means voluntary; by choice; intentional; purposeful”, “[w]antoness requires an even
higher degree of culpability in that it is wholly disregardful of the rights, feelings, and
safety of others.” Pettingell, 271 P.2d at 1042. “One may be said to be guilty of ‘wilful
and wanton disregard’ when he is conscious of his misconduct, and although having no
intent to injure any one, from his knowledge of surrounding circumstances and existing
conditions is aware that his conduct in the natural sequence of events will probably

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result in injury to his guest, and is unconcerned over the possibility of such result. . . .”
Id. The Colorado Supreme Court further stated:
The word wanton is defined in Webster’s New International Dictionary (2d
ed.) as “Marked by or manifesting arrogant recklessness of justice, of the
rights or feelings of others, or the like. . . . To be “wilful and wanton” there
must be some affirmative act purposefully committed which the actor must
have realized as dangerous, done heedlessly and recklessly, without regard
to consequences, or of the rights and safety of others. . . . The demarcation
between ordinary negligence and willful and wanton disregard is that in the
latter the actor was fully aware of the danger and should have realized its
probable consequences, yet deliberately avoided all precaution to prevent
disaster.
Id. at 1042-43.
52.

Similarly, Colo. Rev. Stat. § 13-21-102(1)(b) defines “willful and wanton” conduct

for purposes of exemplary damages as “conduct purposefully committed which the actor
must have realized as dangerous, done heedlessly and recklessly, without regard to
consequences, or of the rights and safety of others, particularly the plaintiff.” See also
Gray v. Univ. of Colo. Hosp. Auth., 284 P.3d 191, 198 (Colo. App. 2012) (“to be willful
and wanton, public employees must be consciously aware that their acts or omissions
create danger or risk to the safety of others, and they then act, or fail to act, without
regard to the danger or risk”); Terror Min. Co. v. Roter, 866 P.2d 929, 934-35 (Colo.
1994) (in order to fall within the scope of the willful and wanton misconduct exception to
the parental immunity doctrine, it would need to be alleged that a person acted
“consciously, knowingly, with reckless disregard of, or intentionally having considered
that the tragic consequences which occurred were ‘highly probable.’”). Thus, the term
wanton adds in the requirement that the actor be conscious of his misconduct—that he

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know that his conduct will probably result in injury and be unconcerned over the
possibility of such result. Pettingell, 271 P.2d at 1042-43.
53.

The legislature’s decision to use the term “willful” as compared to the term “willful

and wanton” and its higher intent requirement must be presumed to be purposeful.
Accordingly, I find that the legislature meant to use the term “willful” as compared to
“willful and wanton”, and find that since it did not define the term willful in the CRUS, it
meant for “willful” to have its plain and ordinary meaning. I find that this requires that an
action be taken “voluntarily, purposefully and with a conscious disregard for the
consequences of the act”. Hohn, 870 P.2d at 517; Pettingell, 271 P.2d at 1042.
Willfulness does not, however, require that a government employee be consciously
aware that his acts or omissions create danger or risk to the safety of others, or that he
intended to harm another.
54.

I note that this result was reached by the New Mexico Court of Appeals in

construing language taken from that state’s recreational use statute. Rivero, 949 P.2d
at 290 (“willful” conduct does not require a plaintiff “to prove deliberate intention or
purpose to harm in order to rebut a defendant’s claim of immunity” under the OffHighway Motor Vehicle Act, which follows the 1965 Model Recreational Use Act; the
term “willful” as defined in Black’s Law Dictionary includes acts done “‘with indifference
to the natural consequences’”) (quoting Huddleston, 843 S.W.2d at 905-06).
55.

This result was also reached by the court in Stephens v. United States, 472

F. Supp. 998, 1016 (C.D. Ill. 1979). Similar to this case, the government argued there
that for the court to find a willful failure to warn of a dangerous condition, it must find
affirmative evidence from which an inference of conscious indifference to the
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consequences might be drawn. Id. The court disagreed, finding that “no spirit of ill will
or intentional misconduct is essential to prove wilfulness.” Id. “Rather, it is conduct
which takes on the aspect of highly unreasonable conduct, or an extreme departure
from ordinary care, in a situation where a high degree of danger is apparent.” Id. If
such conduct is found, the plaintiff is entitled to recovery even though certain defenses
would have prevented his recovery for ordinary negligence. See also Rost v. United
States, 803 F.2d 448, 451 (9th Cir. 1986) (in finding that willful exception to recreational
use statute applied, court found that government actor was not protected because he
personally failed to recognize the precise peril posed stating, “[i]t is enough that he
knows or has reason to know of the circumstances which would bring home to the
realization of the ordinary, reasonable man the highly dangerous character of his
conduct of his conduct”).
56.

I recognize, however, that the United States has cited cases where the Colorado

state courts have considered the meaning of “willful” by referring to or using the
definition for “willful and wanton”. See Safehouse Progressive Alliance for Nonviolence,
Inc. v. Qwest Corp., 174 P.3d 821, 829 (Colo. App. 2007); United Blood Servs. v.
Quintana, 827 P.2d 509, 523 n. 10 (Colo. 1992); see also Crum v. Groce, 556 P.2d
1223, 1225 (Colo. 1976). Those cases did not, however, reference or analyze the
distinction between the two terms as discussed in Pettingell.6

6

Moreover, Crum is distinguishable as the definition of willful was made “in the context of the
statute”, entitled “Damages for Destruction or Property Injury Caused by Minors”. This statute held
parents strictly liable when their child “maliciously or willfully damage[d] or destroy[ed] property. 556 P.2d
at 1224 (citing Colo. Rev. Stat. § 13-21-107).
.

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57.

The United States also cites two Tenth Circuit cases that essentially interpreted

the term “willful” in recreational use statutes to mean “willful and wanton” and required
an intent to cause injury. See Bingaman v. Kansas City Power & Light Co., 1 F.3d 976,
982 (10th Cir. 1993); Klepper v. Milford, 825 F.2d 1440, 1446-47 (10th Cir. 1987).
Those cases, however, were interpreting Kansas law, not Colorado law, as to the
definition of willful. Indeed, the Tenth Circuit made clear in those cases that in
interpreting a state’s recreational use statute, it is the law of that state that controls,
regardless of how other states had interpreted a particular term. Klepper, 825 F.2d at
1446. It found Kansas law “overwhelmingly favors a definition of willfulness as
intentionally causing an injury or doing wrong rather than intentionally acting or failing to
act in a way that merely allows a wrong to occur.” Id. at 1446. Thus, the Tenth Circuit
found that the defendants’ conduct was not willful unless they “intended to injure the
plaintiff or otherwise had a designed purpose or intent to do wrong”. Id. at 1447.
58.

Here, however, Colorado courts, including Pettingell and Hohn, have specifically

acknowledged the distinction between “willful” and “willful and wanton” conduct. I find
that their definition of “willful” is controlling.
59.

With that backdrop, I must now determine whether the Academy willfully failed “to

guard or warn against a known dangerous condition . . . likely to cause harm.” Colo.
Rev. Stat. § 33-41-104. I find that the Academy’s conduct in failing to guard or warn
users of the path against the dangerous condition it knew existed on its property was
willful. My conclusion is supported by the evidence presented in the record, Colorado
law, and cases from other jurisdictions construing the willful and malicious exception to
immunity in the recreational use statutes.
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60.

First, the Academy knew that the asphalt path existed on its property and knew

that persons used the path for recreational purposes, including bicycling, by invitation or
with permission, as the Tenth Circuit found. Dr. Mihlbachler also knew, prior to
September 2008, that people had used the path for recreational purposes.
61.

The Academy knew that signs which read “Bicycle Path, No Motorized Vehicles”

were placed next to the path, and Academy representatives acknowledged that the
existence and placement of the signs in relation to the path would cause members of
the public, including Mr. Nelson, to reasonably believe that they were authorized or
invited to go on the path and ride their bicycles. The Academy did nothing to remove
the “Bicycle Path, No Motorized Vehicles” signs prior to September 3, 2008, though it
had the opportunity to do so. Thus, prior to Mr. Nelson’s injury, CDOT “offered to
remove one of the signs, but the Academy ignored that offer.” (Tenth Circuit Op., p. 8.)
The United States also did nothing to close access to the path.
62.

Despite the Academy’s knowledge of the path and its recreational use, it did not

put the asphalt path on its Real Property Records or identify it on its official trail system.
Thus, the path was not subject to the Trails Management Plan or the CHAS contract
which required that maintenance be performed. This meant that the path was not
actively maintained as a recreational trail or otherwise. Further, Mr. Thoma, the head of
security, admitted that he did not monitor the path.
63.

The United States argues, however, that because the path was not on the

Academy’s official trail system map or official real property records, it was
undocumented and therefore unknown for purposes of monitoring and maintenance.
(United States’ Proposed Findings of Fact and Conclusions of Law, and Br. in Supp., at
-43-

15). This argument is specious. The evidence shows conclusively that the United
States knew of the path and knew that it was being used for recreational purposes.
That was the very basis for the United States’ appeal to the Tenth Circuit arguing that it
was entitled to the benefit of the CRUS and the Tenth Circuit’s decision agreeing with
the government. The United States’ seeking of immunity under the CRUS while
disclaiming any responsibility for the path or its maintenance is disingenuous.
Ultimately, regardless of the fact that the path was not on its official records, the United
States is liable to Mr. Nelson if it willfully failed to warn or guard against a known
dangerous condition likely to cause harm.
64.

Also, off-site water flow onto Academy property in the area of the asphalt path

was a known condition and problem that the Academy had been investigating and
addressing for many years. This is the very problem that caused the sinkhole/washout.
Despite this knowledge and despite knowing of the path’s use for recreational purposes,
the United States did not monitor the path or do anything to make sure the path was
safe from erosion and washouts caused by the off-site water flow.
65.

Given the Academy’s knowledge of the path and its recreational use, the bicycle

signs that allowed people to infer that the path was open to public use, the Academy’s
failure to act when CDOT offered to remove at least one of these signs, and the erosion
issues occurring in that area, I find that the Academy must be deemed to have refused
to weigh the consequences of the recreational use of the path and whether someone
could be injured on it. This was not a situation, as the United States argues, where the
Academy simply omitted to consider the path. See Pettingell, 271 P.2d at 1043
(“Omitting to weigh consequences is simple negligence; refusing to weigh them is
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willful.”) Further, given its knowledge, it must be deemed to have acted voluntarily, by
choice, intentionally and purposefully in not maintaining the path or in not closing off the
path or doing anything to alert people that it was not to be used for recreational
purposes. The Academy has given no justifiable excuse for this. While it may have
believed that the path was on the CDOT and/or MVEA easement, there is undisputed
evidence that the path was located on Academy land and it was the Academy’s
responsibility to upkeep the land and fix any problems. Indeed, this is demonstrated by
the fact that immediately after Mr. Nelson’s accident, it fixed the hole and then ultimately
removed the path.
66.

The Academy’s knowledge and failure to act regarding the path must be

considered in conjunction with Dr. Mihlbachler’s actions or failure to act. The problems
with off-site water flow were also being investigated and documented by
Dr. Mihlbachler. He had responsibility for investigating the substantial erosion
problems. Consistent with this, on August 20, 2008, when Dr. Mihlbachler encountered
and photographed the sinkhole, his “purpose out there on that day” was photodocumenting, “eyes on the ground, looking at what’s happening along our boundary and
downstream from there.” (Def.’s Ex. A, Mihlbachler Testimony at 50:11-14.)
67.

As part of the “eyes on the ground” for the Academy, Dr. Mihlbachler checked

areas that the security forces did not get to that often and reported to the appropriate
party if issues were identified. For all intents and purposes, Dr. Mihlbachler functioned
as an Academy employee, and had responsibilities related to Academy safety and
security and reporting safety concerns.

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68.

Two weeks prior to Mr. Nelson’s accident, Dr. Mihlbachler learned of and

documented the sinkhole/washout. This knowledge, as I have previously stated, is
imputed to the Academy. Thus, the Academy actually knew through its agent two
weeks prior to Mr. Nelson’s accident of the existence of the sinkhole/washout on the
asphalt path. Dr. Mihlbachler and the Academy did nothing, however, to warn the public
of the sinkhole/washout or to guard against the danger posed by the sinkhole/washout.
They also did nothing to guard against the danger of erosion that caused the sinkhole.
69.

Dr. Mihlbachler also did not report the sinkhole to anyone, show anyone the

photographs he had taken of the sinkhole, or take any action to fix, warn about, or guard
against the danger of the sinkhole. This is despite his testimony that, if he had known
the Academy was sanctioning the use of that path, it would have been “incumbent” on
him as the Academy’s Trail Manager to take the appropriate action to keep the users of
that trail safe. (Def.’s Ex. A, Mihlbachler Testimony, 75:4-9.) This is also despite his
belief that there is an expectation for government employees to say something if they
see something.
70.

Dr. Mihlbachler acknowledged that if the path had been an official Academy trail,

the condition of the asphalt path that he observed would be a safety hazard for users of
the path and he would have reported the condition of the path immediately to
maintenance to get it repaired. The fact that the Academy had not officially designated
it as an official trail does not, however, make it less dangerous to the public. Similarly,
the fact that Dr. Mihlbachler thought the trail was to be maintained by CDOT or MVEA
does not make it less dangerous. Indeed, Academy representative Mr. Thoma, testified
that the condition of the asphalt path with the sinkhole was dangerous and hazardous
-46-

for users of the path. Academy representative Greg Long testified that the sinkhole was
a dangerous emergency situation and he believed that something had to be done on an
emergency basis because of safety considerations. The condition of the path with a
sinkhole/washout did not meet Academy safety standards. Yet Dr. Mihlbachler
consciously chose 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 that he was dealing with
along the eastern boundary.
71.

Moreover, the Academy knew that people were using the path for recreational

purposes, yet chose not to communicate that to its agents such as Dr. Mihlbachler even
though he played a safety role at the Academy in connection with his role as Trail
Manager and in respect to his monitoring of erosion issues. This is particularly troubling
given that the Academy had been notified by CDOT of at least one of the bicycle path
signs which gave the impression that the path was open for general use to the public,
and it did not accept CDOT’s offer to remove or do anything further regarding the sign.
72.

I find from the foregoing that Dr. Mihlbachler acted “voluntarily, intentionally, and

with a conscious disregard for the consequences of the act” when he chose not to make
the sinkhole a priority or to do anything to warn about it or guard against its danger.
Hohn, 870 P.2d at 517. It also can be said that Dr. Mihlbachler acted “heedlessly,” i.e.,
without justification, in disregard of the rights of others”, in choosing not to make the
sinkhole a priority or do anything to warn about it or guard against its danger, which
created a higher-than-normal risk of harm. See Colo. Jury Instr., Civil 9:30 (noting that
the definition of “Willful and Wanton Conduct or Willful and Reckless Disregard –
Defined” for purposes of Colo. Rev. Stat. § 13-21-102(1)(b) was a codification of “three
-47-

basic ideas common to ‘willful,’ ‘wanton,’ or ‘reckless’ conduct that run through the
cases: (1) the conduct must have created a higher-than-normal risk of harm; (2) the
defendant must have been aware of the risk (i.e., acted purposefully); and (3) the
defendant must have acted heedlessly,” i.e., without justification, in disregard of the
rights of others”).
73.

The United States argues, however, that Dr. Mihlbachler did not actually “know”

that the sinkhole posed a danger, i.e., he was not aware of the risk as he did not believe
that anyone was still using the path for recreational purposes and he believed that
CDOT and/or MVEA were responsible for the path. The circumstances, as he
understood them, did not indicate a high probability of harm. This is not dispositive. As
noted earlier, willfulness as defined under Colorado law does not require that a
government employee be consciously aware that their acts or omissions create danger
or risk to the safety of others. Such conscious awareness is required for the conduct to
be wanton, as discussed earlier. Willful conduct also does not require that the
employee intended to harm another through their actions or inaction.
74.

Here, Dr. Mihlbachler had seen people using the path in the past for recreational

purposes, and there is no evidence that he thought something had been done to
subsequently preclude its use. The evidence showed that Dr. Mihlbachler only
observed the path about once a month or 12 times per year, leaving about 353 days
each year where he did not observe the use of the path. The fact that he had observed
public use of the path in the past put him—and the United States—on notice that the
path may still be used by the public for recreational purposes, even when he did not
observe that use during the limited time he was in the area. Coupled with
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Dr. Mihlbachler’s knowledge that the sinkhole would create a dangerous condition if the
path were an official trial, it stands to reason that a reasonable person would believe the
sinkhole would be dangerous to anyone using that path for recreational purposes, and
specifically, bicycling—where a person may not be able to see the sinkhole in time to
stop. See Termini v. United States, 963 F.2d 1264, 1268 (9th Cir. 1992) (“a reasonable
person standing in the shoes of the United States would have recognized the probability
of an accident eventually occurring on the spur”); Jacobs v. Commonwealth Highland
Theatres, Inc., 738 P.2d 6, 10 (Colo. App. 1986) (“mere negligence” can be converted
into “wanton and reckless disregard . . . if the defendant, while conscious of its conduct
and cognizant of existing conditions, knew or should have known that injury would
probably result from its omissions”) (emphasis added).
75.

Dr. Mihlbachler’s testimony that he did not do anything about the sinkhole based

on his perception that it was on the CDOT and MVEA easement and was not the
responsibility of the Academy is inconsistent with his testimony that he took no action
because it was not a high priority relative to all the other erosion issues that he was
dealing with. He testified that he understood he had discretion for making decisions
about whether to fix eroded areas that he may encounter on an unofficial path. (Def.’s
Ex. A, Mihlbachler Testimony 55:17-21.) He also acknowledged that he was working on
behalf of the Academy when he took the photographs of the sinkhole on August 20,
2008, and that this was to document the erosion occurring on Academy property. While
Dr. Mihlbachler stated that he thought the path was a service path belonging to MVEA
or CDOT, he testified that he “didn’t see any sense of urgency to have the hole repaired
by them or by the Air Force Academy.” (Id. at 55:22-56:5; see also Am. Ex. 2,
-49-

Mihlbachler Testimony 61:9-13—“in terms of the significance of the damage relative to
other areas” that he was working on, Dr. Mihlbachler “didn’t see a need for the academy
necessarily to take action on the damage that had occurred on the trail”) (emphasis
added). Thus, it is clear from his testimony that Dr. Mihlbachler know that he had
discretion as an Academy agent to have the sinkhole fixed but consciously chose not to
as it was not a high priority to him.
76.

Dr. Mihlbachler’s testimony that he did not do anything about the sinkhole based

on his perception that it was the responsibility of CDOT and/or MVEA is also
inconsistent with his testimony that if he had been aware of the “Bicycle Path” sign on
the path or that it was a recreational trail that was getting used, he would have either
removed the path because it did not fit with the official Trails Management Plan or it
would have been incumbent on him to take the proper action to prevent a safety hazard;
that this would have been part of his duties. He testified that he would have thought
that the Academy was sanctioning the use of that trail for recreational purposes and, as
the Trail Manager for the Academy, he would have needed to take the appropriate
action to make it safe for users of the path. Again, this shows that Dr. Mihlbachler knew
that he, as an Academy agent, could take action to fix the sinkhole or make it safe,
regardless of whether the sinkhole was on CDOT or MVEA easement. There is also no
reason that he could not have contacted CDOT or MVEA once he learned of the
sinkhole for it to take action to repair the sinkhole. Deliberately not prioritizing safety in
the face of a known dangerous condition is a willful failure to guard or warn. See Rost,
803 F.2d at 449 (where horizontal extension of a steel road closure gate impaled a
national forest visitor, the United States was found to have acted willfully because it
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knew of the condition of this gate before the accident, had actual or constructive
knowledge that injury was probable as a result of its failure to guard or warn against the
dangerous condition, and consciously failed to guard or warn against the peril because
it “had other priorities”). I find from the foregoing that Dr. Mihlbachler’s testimony that
he took no action in regard to the sinkhole because he thought it was CDOT’s and/or
MVEA’s responsibility is thus not entirely credible.
77.

Given all of the above, I find that the Academy and Dr. Mihlbachler, its agent,

willfully ignored the dangerous condition on the path and chose not to take any steps to
warn or guard users like Mr. Nelson against that danger. Even if I were not to consider
the Academy’s actions collectively, I find that Dr. Mihlbachler acted willfully in failing to
warn or guard against a known dangerous condition likely to cause harm.
78.

There is no reason that action could not have been taken to warn or guard

against the danger of the sinkhole. Indeed, after Mr. Nelson suffered the serious
injuries from his bicycle crashing into the sinkhole, the Academy moved unhindered and
with tremendous speed to warn users of the dangers in using the path and to guard
against the sinkhole/washout danger. Without even having to obtain a work order, the
Academy immediately filled in the sinkhole, barricaded the entrances to the bike path,
barricaded the sinkhole location itself, placed warning signs on the path that specifically
warned of the “danger,” and removed the “Bike Path – No Motorized Vehicles” signs at
either end of the bike path. It took these immediate steps to ensure that no one would
use the path to bicycle and, if they did, that they would be warned of the danger and not
be injured by it. Later, it removed the asphalt path.

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79.

My finding that the United States’ actions were willful in regard to failure to warn

or guard against a known dangerous condition likely to cause harm is supported by
cases construing recreational use statutes in other states.
80.

In addition to the Rost case cited previously, the Ninth Circuit found that the

Forest Service engaged in willful and malicious behavior that was not protected under a
recreational use statute when it construed and maintained a spur along a canyon road
that ended at a cliff without warning of the hazard, even though the chances of
someone driving over it were small. Termini, 963 F.2d at 1267-69. The court stated
that “[t]he likelihood of an individual actually driving over the cliff speaks to the
probability of injury because of the cliff’s unmarked presence, not to the inherently
dangerous nature of the cliff in the first instance. . . . Common sense dictates that a
precipice at the end of a road constitutes a peril to be apprehended.” Id. Similarly, the
court stated that the fact the road was used infrequently “seems to us much less
important to the court than the fact that it abruptly terminates a cliff”, and rejected an
argument that the United States lacked constructive knowledge of the probability of an
injury on the spur because no accidents had occurred there. Id.
81.

In Soto v. United States, 748 F. Supp. 727 (C.D. Cal. 1990), a person was

injured when they dove into a pool on Forest Service grounds. The court found that the
Forest Service’s failure to warn against diving into the pool was willful even though the
Service had classified the pool as an undeveloped site and even though the pool was
not open to swimming or diving. Id. at 728-31. The court found that the government
could not “mask reality with words”. The pool was “a de facto ‘developed’ area”,
regardless of its official classification, and it “should have been recognized and treated
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as such by the District Ranger.” Id. at 729. The Soto court also found that the United
States was not immune under the state’s recreational use statute based on its willful
misconduct. Id. at 731. There was actual knowledge that a peril existed, and
constructive knowledge “that injury was a probable, as opposed to a possible,
consequence of any danger” as the area was heavily used. Id. There was also a
conscious failure to act to avoid the peril; thus, the court found that the District Ranger’s
failure to act was, “to put it charitably”, “in callous disregard of the safety of the national
forest-using public.” Id. There was no systematic procedure for reporting accidents,
none of the government personnel were trained in safety, there was no training
program, and “no one would acknowledge that he or she had any responsibility for the
safety of the using public.” Id. (emphasis in original).
82.

The United States was also found liable under the state’s recreational use statute

for its willful or malicious failure to guard or warn against a known danger when the
plaintiff fell through a hole caused by erosion in an observation deck at a national
recreational area. Ware v. United States, No. C-92-1744 EFL, 1994 WL 46739, at *2-3
(N.D. Cal. Feb. 4, 1994). The court found that the government knew about the
condition, failed to inspect the area as required or establish a safety plan, failed to warn
the public of the danger even though it allowed people to use the area, and failed to
repair the problem. Id. at *2-3, 5-7. It further found that “a reasonable person standing
in the shoes of the defendant would have recognized that it was probable that an
accident would occur in the very deck area itself from all the outward signs of
deterioration unless it was inspected and fixed” and that “a reasonable person would
know, seeing the outward signs, that an injury was probable as opposed to just being
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possible.” Id. at *7. While the United States argued that it was not aware of this hole as
it “developed suddenly”, the court found that “[t]his really begs the question”:
It seems obvious that the hole had to have been repaired over time, and the
Court finds the reason it reopened suddenly before plaintiff's accident was a
total lack of structural and foundation support below it. It also seems clear
that if the deck had been allowed to remain in the same condition after the
plaintiff's accident that other problems with the decking would have
manifested themselves because of the total lack of any support for the deck.
Id. at *6.
83.

Other cases that have found summary judgment inappropriate on the willful and

malicious failure to warn exception also provide some support for my ruling. See
Umpleby v. United States, 806 F.2d 812, 815-16 (8th Cir. 1986) (reversing the finding of
the trial court as a matter of law that the conduct of the United States did not constitute
a willful or malicious failure to guard or warn against a dangerous condition where the
evidence showed that the Army Corps of Engineers knew that the road upon which
plaintiff was injured had a curve of 90 degrees at the point of the accident, had control
of the road, knew of the safety and design requirements for the road, including posting
of signs, and knew that no warning signs were posted); Mandel v. United States, 719
F.2d 963, 967-68 (8th Cir. 1983) (grant of summary judgment was improper in case
where the plaintiff was injured when he dove into a swimming area and hit a submerged
rock; evidence showed the park service was aware of the danger of submerged rocks,
even though it did not know of the particular rock that the plaintiff struck, and did not
post any type of warning, and a ranger who spoke to the plaintiff before he went
swimming recommended the swimming hole without indicating any possible dangers);
Sulzen v. United States, 54 F. Supp. 2d 1212, 1217-18 (D. Utah 1999) (summary

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judgment was not appropriate where woman was killed by falling rock at picnic site as
there was evidence by which a fact finder could find that the United States knew of the
falling rock hazard and failed to take any action); Stokka v. Cass Cty. Elec. Coop., 373
N.W.2d 911, 912 (N.D. 1985) (finding evidence from which a jury could infer that
defendant CCEC willfully failed to guard or warn against a dangerous condition where it
“knew that unmarked guy wires posed a risk to snowmobilers; that the guy wire struck
by [plaintiff] was known by [defendant] to pose a risk to snowmobilers”; that a guy guard
was previously installed but was not present at the time of the accident; “that CCEC
could avert harm to snowmobilers by installing guy guards”; and that CCEC did not
have an effective policy for determining where to install guy guards or to assure their
continued presence if once installed).
84.

The government’s actions and inactions here that led to Mr. Nelson’s

catastrophic injuries fall neatly within the continuum of cases wherein the courts have
found a willful failure to warn or guard against a known dangerous condition (or found
the evidence sufficient to allow the finder of fact to conclude there was a willful failure to
warn or guard against a known dangerous condition.) The known dangerous condition
here—the sinkhole/washout—is not unlike the known dangerous conditions (stumps,
rocks, cliff, etc.) existing in the above cited cases. And the United States’ willful
decision not to warn or guard against the known dangerous sinkhole/washout condition
on the path it knew was being used by recreational users is not unlike the willful
decisions not to warn or guard the known dangerous conditions in the cited cases.
85.

As in Termini, common sense dictates that a large, deep sinkhole that covers the

entire width of a bicycling path is perilous, regardless of how often the path may be
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used. A reasonable person standing in the shoes of the United States would have
recognized the probability of an accident eventually occurring on that path given the
United States’ knowledge of recreational use of the path, the significant erosion and
washout issues that were occurring on the path, and ultimately the sinkhole that was
discovered by Dr. Mihlbachler. As in Soto, the path upon which Mr. Nelson was injured
was a de facto recreational trial, regardless of the fact it was not an official trail or on the
Academy’s Real Property records, and it should have been recognized and treated as
such by the Academy. As in Ware, the Academy knew about the erosion occurring on
the path and knew of the actual sinkhole, failed to inspect or maintain the path or
establish a safety plan for the path, failed to warn the public of the danger even though
it allowed people to use the path, and failed to repair the problem after it learned of the
sinkhole and before Mr. Nelson’s accident. Moreover, the United States has not cited
any cases construing recreational uses statutes which support its position that its
actions and the actions of its agent(s) do not rise to the level of willful conduct.7
86.

I recognize, however, that there are some distinctions between this case and the

cases cited above. For example, in some of the cases the government had more
substantial prior knowledge of the danger at issue, there was heavier recreational use of

7

The United States cites Marquez v. United States, No. 95-S-346, 1996 WL 588918 (D. Colo.
Sept. 17, 1996), but I find that case distinguishable. While no evidence of willful or malicious conduct was
found by the court on the part of the Forest Service, the plaintiff presented only generalized knowledge of
avalanche danger. 1996 WL 588918, at *7. That is not the situation here where there was actual
knowledge of the sinkhole. Similarly, in Otteson v. United States, 622 F.2d 516 (10th Cir. 1980), claims
that the Forest Service failed to maintain a road free from ice, warn of hazards, or close the road were
“plainly couched in terms of negligence by the government”. Id. at 520. While the plaintiff argued that the
government was aware of the condition of the road, no evidence was presented on this issue, and the
court thus found that the plaintiff did not adequately allege “willful” conduct under Colorado’s sightseer
statute. Id.

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the area at issue, or the government had even recommended use of the activity that
was found to be dangerous. Nonetheless, these cases are still instructive. While the
United States’ actions and failure to act may arguably not fall on the most egregious end
of the willful or malicious conduct spectrum, they show in my opinion that they are
above the minimum level of culpability for establishing a willful failure to warn or guard
against a known dangerous condition likely to cause harm. Further, the fact that there
is no evidence that anyone was previously injured on the path due to erosion/washout
issues is also a non-issue in my opinion, as this means that it simply took “years for the
inevitable to happen.” Stephens, 472 F. Supp. at 1017.
87.

The United States also points out that many of these cases are based on

California law which finds willful misconduct where there was constructive knowledge of
the danger, unlike the CRUS which requires actual knowledge. That is a distinction
without a difference, however, as here there was actual knowledge of the sinkhole.
88.

Based on the foregoing, I find that there was a willful failure to guard or warn

against a known dangerous condition, use, structure, or activity likely to cause harm by
the United States. Colo. Rev. Stat. § 33-41-104(1). Accordingly, I find that the United
States is not immune from liability under the CRUS. My finding that the United States is
liable to Plaintiffs as a landowner under the Colorado Premises Liability Act is
reaffirmed. (February 2014 Order, Conclusions of Law ¶¶ 61-78.)
IV.

ORDER OF THE COURT
It is hereby adjudged and ORDERED:

1.

The Court has jurisdiction over Plaintiffs’ claims under the Federal Tort Claims

Act.
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2.

The United States’ liability for the damages sustained by the Plaintiffs James

Nelson and Elizabeth Varney is not limited by the Colorado Recreational Use Statute
because of the United States’ willful failure to warn or guard against a known dangerous
condition on its property likely to cause harm.
3.

The United States is liable for injuries, losses or damages sustained by

Mr. Nelson and Elizabeth Varney in regard to Mr. Nelson's accident on September 3,
2008.
4.

Defendant’s willful action and inaction, for which it is liable, were the direct and

proximate cause of the Plaintiffs’ injuries, losses, and damages.
5.

Defendant is 100% liable to the Plaintiffs for their damages.

6.

Plaintiff James Nelson is hereby awarded his damages as I previously

determined in my May 14, 2014, Order in the total amount of $6,900,793.53
7.

Plaintiff Elizabeth Varney is hereby awarded her damages as I previously

determined in my May 14, 2014, Order in the total amount of $401,425.
8.

Plaintiffs are awarded post-judgment interest at the rate allowed by law.

9.

Plaintiffs are awarded their costs and attorneys’ fees incurred in bringing this

action pursuant to Colo. Rev. Stat. § 33-41-105.5. Plaintiffs shall provide their Bill of
Attorneys’ Fees and Bill of Costs to the Court in accordance with the Federal Rules of
Procedure.
Dated: June 9, 2017
BY THE COURT:
s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge
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