Nelson v. United States, Civil Action No. 11-cv-02953-WYD-CBS.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Writing for the Court: Wiley Y. Daniel, Senior United States District Judge
• Citation: 256 F.Supp.3d 1136
• Parties: James NELSON and Elizabeth Varney, Plaintiffs, v. UNITED STATES of America, Defendant.
• Docket Number: Civil Action No. 11-cv-02953-WYD-CBS.
• Decision Date: 09 June 2017

256 F.Supp.3d 1136

James NELSON and Elizabeth Varney, Plaintiffs,
v.
UNITED STATES of America, Defendant.

Civil Action No. 11-cv-02953-WYD-CBS.

United States District Court, D. Colorado.

Signed June 9, 2017

David P. Hersh, Steven Gregory Greenlee, Burg Simpson Eldredge Hersh & Jardine, PC, Englewood, CO, for Plaintiffs.

Jacob Licht–Steenfat, Marcy Elizabeth Cook, Mark S. Pestal, U.S. Attorney's Office, Denver, CO, for 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,

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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

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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

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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...