Nelson v. United States, Civil Action No. 11–cv–02953–WYD–MEH

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtWiley Y. Daniel, Senior United States District Judge
Citation20 F.Supp.3d 1108
PartiesJames Nelson and Elizabeth Varney, Plaintiffs, v. United States of America, Defendant.
Decision Date06 February 2014
Docket NumberCivil Action No. 11–cv–02953–WYD–MEH

20 F.Supp.3d 1108

James Nelson and Elizabeth Varney, Plaintiffs
United States of America, Defendant.

Civil Action No. 11–cv–02953–WYD–MEH

United States District Court, D. Colorado.

Filed February 6, 2014

20 F.Supp.3d 1114

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

Mark S. Pestal, May E. Kim, Mustafa Ahmed Hersi, Stephen D. Taylor, William Aaron Vandiver, U.S. Attorney's Office, Denver, CO, for Defendant.


Wiley Y. Daniel, Senior United States District Judge

This case, arising under the Federal Tort Claims Act (“FTCA”), involves a premises liability claim under the Colorado Premises Liability Act (“CPLA”) against the United States. It arises from a bicycle accident of Plaintiff James Nelson on property of the United States Air Force Academy. Plaintiffs claim that Mr. Nelson suffered injuries in that accident when he fell into a large, unmarked sinkhole that bisected the entire width of a bicycle path that he was riding on. Plaintiff Elizabeth Varney, Mr. Nelson's wife, brings a loss of consortium claim.

By Order of November 12, 2013, I struck the jury trial based on the parties' stipulation that this case must be tried to the court by statute. See 28 U.S.C. §§ 2402, 1346(b)(1). I also bifurcated the issues of liability and damages. A bench trial was held on December 2–5, 2013. This trial was on liability only. Plaintiffs James Nelson and Elizabeth Varney appeared and were represented by David P. Hersh and Steven G. Greenlee of the firm Burg Simpson Eldredge Hersh & Jardine, P.C. Defendant United States of America was represented by W. Aaron Vandiver and Mark Pestal of the United States Attorney's Office.

Having heard and considered the evidence, including stipulated facts, live witness testimony, deposition testimony, admitted exhibits submitted by the parties, counsel's arguments, and the parties' proposed findings of fact and conclusions of law, I now enter the following Findings of Fact, Conclusions of Law and Order.

20 F.Supp.3d 1115



1. This case arose from a biking accident that occurred on an asphalt paved path (“the asphalt path” or “the path”) on real property owned by the United States Air Force Academy (“Academy” or “USAFA”) in Colorado Springs, Colorado.

2. The biking accident occurred on September 3, 2008.

3. Before September 3, 2008, an asphalt paved path located on the east side of Colorado Interstate 25 (“I–25”), paralleling the highway, existed near the eastern boundary of the Academy.

4. The United States is the landowner of the property for purposes of the CPLA, Colo. Rev. Stat. § 13–21–115, and the Colorado Recreational Use Act, Colo. Rev. Stat. § 33–41–101, et seq.

5. The property where the accident occurred was part of a United States Air Force installation known as the Air Force Academy and is located on the northern edge of Colorado Springs, Colorado.

6. The Academy encompasses approximately 18,500 acres.

7. The installation includes an academic campus, airfield, sports stadium, golf course, housing, commercial areas, and designated multi-use recreational trails.

8. In July 1958, the USAFA 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.

9. The USAFA also granted Mountain View Electric Association (“MVEA”) an easement in this same area to build and maintain an overhead utility line.

10. The asphalt path was located within the CDOT easement through which I–25 was located.

11. Mr. Jeffrey Thoma, the head of USAFA security, did not monitor the path.

12. The USAFA's property had a border fence to the east of the asphalt path with a sign that read, “Warning. U.S. Air Force Installation. It is unlawful to enter this area without permission of the Installation Commander. Sec 21, Internal Security Act of 1950; 50 U.S.C. § 797. While on this installation all personnel and the property under their control are subject to search.”

13. The asphalt path on which the biking accident occurred was not identified on the USAFA's Real Property Record.

14. The USAFA maintained a series of official recreational and multi-use trails throughout the installation.

15. The Falcon Trail was located west of I–25 and received hundreds of users per week.

16. The asphalt path where the accident occurred was not part of the USAFA's official trail system.

17. The USAFA had a Trails Management Plan that provided guidance about the proper maintenance to be performed on official trails.

18. The Trails Management Plan did not apply to unofficial trails.

19. The USAFA did not act to prevent the public from entering its property to use the asphalt path.

20. At the time Mr. Nelson was injured on September 3, 2008, the north entrance to the asphalt path was marked with a sign

20 F.Supp.3d 1116

that read: “Bicycle Path, No Motorized Vehicles.” The sign was off of the USAFA property.

21. There was a USAFA “Warning” sign in the area, but it was located about 30 to 45 feet to the east of the “Bicycle Path” sign.

22. The entrance to the path was a clear opening where the USAFA boundary fence ended. The fence ends at that location with an engineered/planned corner/ending.

23. The USAFA boundary fence did not cross the path.

24. The USAFA did nothing to remove the “Bicycle Path, No Motorized Vehicles” sign prior to September 3, 2008.

25. CDOT offered to remove the bicycle path sign prior to September 3, 2008, but USAFA did not request that the sign be removed.

26. Specifically, Debbie Barrett was asked by CDOT in 2007 whether the USAFA wanted to remove the “Bicycle Path” sign.

27. Before September 3, 2008, the path was used by members of the public for recreational purposes, such as walking, jogging, and bicycling.

28. James Nelson had ridden his bicycle on the path prior to September 3, 2008.

29. Mr. Nelson had visited the USAFA on previous occasions.

30. Mr. Nelson did not pay a charge to anyone to use the path.

31. 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.

32. James Nelson was aware of the “Bicycle Path, No Motorized Vehicles” sign prior to September 3, 2008.

33. James Nelson knew the property where the path was located was on USAFA property.

34. Mr. Nelson has no memory of September 3, 2008, or the incident.

35. Mr. Nelson cannot remember what time he left his house.

36. Mr. Nelson's wife, Ms. Varney, made a handwritten statement to police on September 3, 2008, stating, inter alia, that Mr. Nelson left the house at 8:00 p.m. Ms. Varney signed the statement.

37. The bicycle Mr. Nelson was riding was not equipped with a headlight.

38. While riding on the path, James Nelson fell into a sinkhole on the path.

39. The sinkhole encompassed the entire width of the asphalt path.

40. From 2000–2008, Dr. Mihlbachler was employed by the United States Fish and Wildlife Service as a biologist.

41. Dr. Mihlbachler was stationed at the Academy as the Natural–Resources Manager.

42. Dr. Mihlbachler's job at the Academy involved going out and surveying areas throughout the Academy and monitoring the landscape. He had responsibility for managing the natural resources—including the land, vegetation, and animal life—on the Academy's 18,500 acres. Dr. Mihlbachler had additional responsibility to determine the impact of erosion on an endangered species, the Preble's Meadow Jumping Mouse. Dr. Mihlbachler was also managing a number of multi-million dollar erosion remediation projects in the area.

43. Dr. Mihlbachler was looking at the erosion effects on Academy property located on the east side of I–25.

44. On August 20, 2008, Dr. Mihlbachler took a number of photographs of

20 F.Supp.3d 1117

erosion problems caused by storm water draining onto the property from residential neighborhoods east of the property.

45. The sinkhole on the path was photographed on August 20, 2008, by Dr. Mihlbachler.

46. 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.

47. Dr. Mihlbachler did not report the sinkhole or show the photographs to anyone else before September 3, 2008.

48. Dr. Mihlbachler thought the path was a service road used by CDOT or MVEA.

49. Dr. Mihlbachler had seen CDOT and MVEA service crews using the path as a service road from 2000–2008.

50. Dr. Mihlbachler did not believe the path was an official recreational trail, or that outside users were...

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