10th Circuit Concludes Recreational Use Statute Case

A panel of judges upheld a $7 million verdict after a case’s second appeal

After a second trip to the 10th Circuit Court of Appeals, a case blaming the federal government for a man’s traumatic brain injury reached a $7.3 million final judgment for the plaintiff.


The 10th Circuit’s opinion hinged on the issue of whether to apply an exception to the Colorado Recreational Use Statute and had the federal court weighing in on a matter of state law to create a precedent. While the case’s outcome is instructional, rather than binding precedent, outside the 10th Circuit’s jurisdiction, the ruling may offer guidance for state and federal courts around the country for other similar recreational use laws.

The case originated in 2008 when James Nelson crashed his bicycle on a trail that had been damaged by a sinkhole near the Air Force Academy in Colorado Springs. Nelson was flung from his bike and sustained serious permanent injuries resulting from the crash. 

Nelson, represented by Burg Simpson, sued the Air Force Academy and was initially awarded a $7.3 million verdict on Premises Liability Act claims. The government, however, appealed that verdict claiming that it was exempt from PLA claims under the Colorado Recreational Use Statute. A panel of judges on the 10th Circuit, composed of judges Neil Gorsuch, Tim Tymkovich and Carolyn McHugh, agreed with the federal government and remanded the case to federal court to determine whether Nelson’s claim fit within a CRUS exemption for willful failure to warn of a dangerous condition.

The federal district court found that the exemption did apply and reinstated the verdict. Upon another appeal to the 10th Circuit, the panel — this time made up of judges McHugh, Scott Matheson, and Gregory Phillips — agreed with the plaintiff and upheld the verdict. 

The opinion, penned by McHugh, details how the court arrived at its decision, finding that the Air Force Academy didn’t act appropriately to prevent injuries on the trail. Although the case is confined to its unique set of facts, Burg Simpson shareholder Dave Hersh said he believes it will help other litigants determine how other CRUS cases might be decided.

The opinion goes into detail on how it determined whether the Air Force Academy acted knowingly and willingly in failing to address the dangerous condition on the trail after Dr. Brian Mihlbachler, a biologist responsible for monitoring erosion on the land noticed the damage to the trail. 

The court wrote in the opinion that because the Colorado Supreme Court hadn’t “specifically construed” the CRUS exception, the 10th Circuit would fill in and predict how the state Supreme Court would rule and determine how broad or how narrow to apply the Premises Liability Act shield and the CRUS exception. 

The Air Force Academy argued that the Premises Liability Act displaced common law and any further changes to their liability as property owners would displace the PLA. The panel of judges said, however, that the Air Force Academy’s argument was wrong in assuming that the two statutes couldn’t coexist and address the same area of common law. The court found that the CRUS didn’t displace the PLA but instead built upon it, and because of that. “Thus, its liability shield must be construed narrowly and the CRUS exception must be construed broadly,” the court found.  

The court then went on to discuss whether the academy was “willful” in its failure to warn of the danger on the trail. 

Mihlbachler, who discovered the erosion on the trail hadn’t alerted anyone to the damage after noticing it, believed that it was on Colorado Department of Transportation property. The district court and appellate court, however, agreed that were the path not an official academy trail, it would not be any less dangerous to its users. 

“Nothing in the CRUS exempts such liability simply because another party is responsible for the dangerous condition; the duty to warn or guard against the danger remains in effect,” McHugh wrote for the 10th Circuit. 

“A landowner who decides not to act in the face of a known danger because it believes someone else is responsible for the maintenance of its land does not fail to act any less purposefully than does the landowner who decided not to act because it did not consider the danger ‘a high priority.’”

Hersh said he believes the court’s ruling will be particularly influential in future cases. “This puts emphasis on the fact that if you’re willful, you can’t just turn a blind eye to dangers on your property,” Hersh said. “You can’t allow people to encounter dangerous conditions. This has given depth perception to the idea that landowners should be encouraged to open their land, but the willful exception to the grant of immunity now has more clarity and tells us how landowners have to take care for people visiting their property.”

Hersh said he had not yet had any discussions with the government about whether it will file a petition for rehearing at the 10th Circuit Court of Appeals but he doesn’t expect the case to be appealed to the U.S. Supreme Court, should it make it that far.

The U.S. Attorney’s Office for the District of Colorado did not respond for comment.

Hersh said he believes the case will be instructional in other jurisdictions that use recreational use statutes similar to Colorado’s. He said many states used models for their statutes that might be similar or even identical to one another. The facts of premises liability cases fall on a continuum, Hersh said, and it’s instructive to courts as they evaluate where on the continuum they think their case falls.

— Tony Flesor

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