from the United States District Court for the District of
Colorado (D.C. No. 1:11-CV-02953-WYD-CBS)
M. Salzman, Appellate Staff Attorney, Civil Division (Chad A.
Readler, Acting Assistant Attorney General; Bob Troyer,
United States Attorney; and Mark B. Stern, Appellate Staff
Attorney, Civil Division, with him on the briefs), United
States Department of Justice, Washington, D.C., for Defendant
T. Fishman, Ridley, McGreevy & Winocur, PC, Denver,
Colorado (David P. Hersh, Steven G. Greenlee, Burg Simpson
Eldredge Hersh & Jardine, PC., Englewood, Colorado, with
him on the brief), for Plaintiffs - Appellees.
MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
2008, Mr. James Nelson was seriously injured while riding his
bicycle on United States Air Force Academy land. He and his
wife, Elizabeth Varney,  sued the Academy under the Federal Tort
Claims Act ("FTCA"), seeking damages. The district
court ruled in their favor and awarded them approximately $7
million in damages. In a previous appeal, we reversed that
decision, holding that the Colorado Recreational Use Statute
(the "CRUS") shielded the Academy from liability.
But we remanded on the issue of whether an exception to the
statute's liability shield applied. On remand, the
district court held that an exception did apply and
reinstated its prior judgment. The Academy then brought this
jurisdiction under 28 U.S.C. § 1291, we affirm.
September 3, 2008, Mr. Nelson was involved in a bicycle
accident while riding on an asphalt path on Academy land.
Nelson v. United States ("Nelson
III"), 256 F.Supp.3d 1136, 1141 (D. Colo. 2017). He
struck a sinkhole, "lost control of his bicycle,"
and "was flung onto the asphalt path," suffering
severe injuries. Id. The asphalt path ran parallel
to Interstate 25 and was within an easement held by the
Colorado Department of Transportation ("CDOT"),
though CDOT was not responsible for maintaining the path.
See id. at 1141-42. At both entrances to the path
were two signs-one that read, "Bicycle Path, No
Motorized Vehicles," and another, less visible, that
prohibited entry onto Academy property. See id. at
1145; Nelson v. United States ("Nelson
II"), 827 F.3d 927, 929 (10th Cir. 2016). The
Academy did not post the bicycle-path signs, nor did it
otherwise designate the path as a recreational trail.
Nelson III, 256 F.Supp.3d at 1144-45. In fact, the
Academy considered public users to be trespassers.
Id. Yet, despite knowing the public used the path,
the Academy did not take any affirmative steps to preclude
the public or remove the bicycle-path signs prior to Mr.
Nelson's accident. See id.
sinkhole that Mr. Nelson encountered "encompassed the
entire width of the path" and was created by
"wash-out/erosion problems in the area."
Id. at 1143. Despite its size, the sinkhole was
difficult to see by users of the path. See id. The
sinkhole was first discovered on August 20, 2008, by Dr.
Brian Mihlbachler, a biologist with the Fish and Wildlife
Service. Id. at 1145-46. Dr. Mihlbachler "had
[the] responsibility for managing the natural resources on
the Academy's" land, particularly monitoring
"serious erosion and sedimentation issues" and
"reporting to the appropriate party if issues were
identified." Id. at 1146. Dr. Mihlbachler was
an employee of the Academy and "had responsibilities
related to Academy safety and security and reporting safety
concerns." Id. at 1147. He found the sinkhole
while monitoring erosion "along [the Academy's]
boundary." Id. at 1146. Dr. Mihlbachler
photographed and documented the sinkhole but "did not
report the sinkhole or show the photographs to anyone."
Consequently, he was the only Academy employee who was
actually aware of the sinkhole before Mr. Nelson's
accident. Id. at 1146-47. Despite knowing the path
was being used at least occasionally "for recreational
purposes," id. at 1144, 1161, Dr. Mihlbachler
did not take any steps to warn of, fill in, or cordon off the
sinkhole prior to the accident, id. at 1147-49.
Nelson and his wife filed suit against the Academy in
district court, seeking damages under the FTCA. Id.
at 1140. The district court found that Mr. Nelson was an
invitee or licensee and that the Academy was liable for his
injuries. Id. The district court awarded him
approximately $7 million for his injuries and losses and
awarded Ms. Varney $401, 425 for loss of consortium.
Id. The Academy had argued the CRUS shielded it from
liability, but the district court held the CRUS was
inapplicable. See id. The Academy appealed, and we
reversed the district court, concluding the CRUS did apply.
Nelson II, 827 F.3d at 929. But we did not reach the
question of whether an exception to the CRUS applied.
Instead, we remanded to the district court to make that
determination in the first instance. Id. at 933. On
remand, the district court held that "the Academy and
Dr. Mihlbachler" were not shielded from liability under
the CRUS because, per an exception to the CRUS relevant here
("the CRUS exception"), they "willfully
ignored the dangerous condition on the path and chose not to
take steps to warn or guard users like Mr. Nelson against
that danger." Nelson III, 256 F.Supp.3d at
1165; see also Colo. Rev. Stat § 33-41-104(1).
The district court also held alternatively that even if the
Academy's and Dr. Mihlbachler's actions were not
considered collectively, "Dr. Mihlbachler acted
willfully" and thus the Academy was liable. See
id. The Academy brought this appeal.
agree with the district court that Dr. Mihlbachler's
actions and knowledge alone are sufficient to support a
finding of liability against the Academy.
reviewing the district court's conclusion that Mr.
Nelson's claim falls within the CRUS exception, we first
provide an overview of that exception under Colorado law.
Then, we review the district court's decisions in some
detail to assess whether the court's conclusion is
correct according to Colorado law, and whether it is
supported by the district court's factual findings.
Ultimately, we determine that judgment in favor of the
Nelsons is proper, and we affirm the decision of the district
The CRUS and the CRUS Exception
Colorado General Assembly adopted the CRUS "to encourage
owners of land to make land and water areas available for
recreational purposes." Colo. Rev. Stat. §
33-41-101. It attempts to accomplish this goal "by
limiting [landowner] liability toward persons entering
thereon for [recreational] purposes." Id.
Accordingly, the CRUS provides a near complete liability
shield to landowners "who directly or indirectly
invite or permit, without charge, any person to use
[their] property for recreational purposes."
Id. § 33-41-103(1). But this broad liability
shield is only nearly complete. Relevant here, the CRUS
exception states that "[n]othing in [the CRUS] limits in
any way any liability which would otherwise exist . . . [f]or
willful or malicious failure to guard or warn against a known
dangerous condition, use, structure, or activity likely to
cause harm." Id. § 33-41-104(1).
core legal issue in this case is a question of state law-the
proper interpretation of the CRUS exception. "In FTCA
cases, we review the district court's determination of
state tort law de novo." Nelson II, 827 F.3d at
930. "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). When interpreting a statute, Colorado
courts "first 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). They also examine "the statute as a whole
and strive to give 'consistent, harmonious, and sensible
effect to all parts.'" Reno v. Marks, 349
P.3d 248, 253 (Colo. 2015) (quoting Denver Post Corp. v.
Ritter, 255 P.3d 1083, 1088-89 (Colo. 2011)). If a
statute grants immunity in derogation of the common law,
Colorado courts construe the grant of immunity narrowly and
exceptions to that grant broadly. See Burnett v. State
Dep't of Nat. Res., 346 P.3d 1005, 1008 (Colo.
2015). But throughout the statutory construction inquiry, the
"touchstone remains the intent of the legislature."
St. Vrain Valley Sch. Dist. RE-1J v. A.R.L. ex rel.
Loveland, 325 P.3d 1014, 1019 (Colo. 2014).
agree with the district court that "Colorado appellate
courts," including the Colorado Supreme Court,
"have not specifically construed" the CRUS
exception. See Nelson III, 256 F.Supp.3d at
1149. Thus, we have the responsibility to predict how the
Colorado Supreme Court would interpret it in the first
instance. See Johnson, 305 F.3d at 1118. Before
considering the text of the statute, however, we must
determine whether the CRUS derogates the common law such that
we are required to construe the CRUS's liability shield
narrowly and the CRUS exception broadly. See
Burnett, 346 P.3d at 1008. The Academy argues this
doctrine is inapplicable here because the CRUS "does not
displace the common law, but rather the Colorado Premises
Liability Act [("CPLA")]." Appellant's Br.
at 23-24. The CPLA sets out the circumstances under which
landowners may be liable to entrants on their property,
see Colo. Rev. Stat. § 13-21-115(2)-(5), and
aspects of it represent "substantial departure[s] from
the common law," see Larrieu v. Best Buy Stores,
L.P., 303 P.3d 558, 565 & n.9 (Colo. 2013); Colo.
Rev. Stat. § 13-21-115(1.5)(e) (explaining that the
purpose of the CPLA is, among other things, "to protect
landowners from liability in some circumstances when they
were not protected at common law"). The Academy suggests
that because the CPLA displaced the common law, any further
changes to landowner liability displace only the CPLA. This,
is at least in part because the CPLA "was designed to
enhance protections for landowners." See
Appellant's Br. at 23-24 (citing Colo. Rev. Stat. §
13-21-115(1.5)(e)). We are not convinced.
Academy's argument suffers from at least two flaws.
First, it assumes without authority that multiple statutes
cannot, either working in tandem or separately, derogate the
same general area of common law. Second, it overlooks that
the CPLA and the CRUS have consonant purposes. The CRUS was
passed to "encourage owners of land to make land and
water areas available for recreational purposes by limiting
their liability toward persons entering thereon for such
purposes." Colo. Rev. Stat. § 13-41-101. And, as
the Academy notes, the purpose of the CPLA is "to create
a legal climate which will promote private property rights
and commercial enterprise and will foster the availability
and affordability of insurance" by "protect[ing]
landowners from liability in some circumstances when they
were not protected at common law." Id. §
13-21-115(1.5)(d)-(e). In short, the CRUS did not displace
the CPLA but furthered its purpose. So the CRUS, either on
its own or working in tandem with the CPLA, derogates the
common law. Thus, its liability shield must be construed
narrowly and the CRUS exception must be construed broadly.
move to the text of the statute. The parties do not dispute
most of the district court's construction of the CRUS
exception-neither party claims that the term
"malicious" applies here nor that we are
considering a dangerous "use, structure, or
activity." See Colo. Rev. Stat. §
33-41-104(1)(a). The CRUS exception's remaining relevant
text indicates that a landowner is liable for injuries on its
land that result from a "willful . . . failure to guard
or warn against a known dangerous condition . . . likely to
cause harm." See id. The Academy also has not
disputed the district court's findings that the sinkhole
was a dangerous condition likely to cause harm, see
Nelson III, 256 F.Supp.3d at 1150-52, that Dr.
Mihlbachler knew the path was being used for recreational
purposes, id. at 1144, 1161, that Dr. Mihlbachler
failed to warn or guard against the dangers inherent in the
sinkhole on a known bike path, id. at 1147-49,
1162-65, or that Dr. Mihlbachler knew about the sinkhole
prior to Mr. Nelson's accident, id. at 1146-47;
see also Appellant's Reply Br. at 13 (explaining
that the Academy is not "challeng[ing] the district
court's findings" of fact).
leaves us with two disputes: whether Dr. Mihlbachler knew the
sinkhole was a "dangerous condition likely to cause
harm" and whether his failure to warn or guard against
that dangerous condition was "willful." Before
addressing those issues, we define the terms
"known" and willful" under Colorado law. We
then proceed to apply that law to the facts found by the