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Nelson v. United States

United States District Court, D. Colorado

June 9, 2017

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

          WILEY Y. DANIEL SENIOR UNITED STATES DISTRICT JUDGE.

         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 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. Accident Background

         1. 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.)

         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. Background Regarding Asphalt Path

         6. 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.)

         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.)

         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.)

         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. Dangerous Condition Likely to Cause Harm 20.

         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, 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.

         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. Knowledge of the Path and Its Recreational Use

         30. 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.)

         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.)

         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.)

         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. Knowledge of the Condition at Issue

         46. 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 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. ...


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