Four years after a federal court entered a $7 million judgment to a mountain biker injured on Air Force Academy property, a proposed amendment to the Colorado Recreational Use Statute is once again before the legislature. This time, the amendment seeks to narrow the scope of an exception to the statute under which the Academy was held liable by protecting landowners from liability for failing to warn recreational users of a known dangerous condition, provided appropriate signage is posted at key locations used to access the recreational area.
The Colorado Recreational Use Statute (“CRUS”) was enacted "to encourage owners of land to make land and water areas available for recreational purposes," C.R.S. § 33-41-101, and provides a shield from liability to owners who permit such use without charge. But as the Academy learned in 2019, “this broad liability shield is only nearly complete.” Nelson v. United States, 915 F.3d 1243, 1247-48 (10th Cir. 2019).
The statute carves out a few exceptions under which a landowner can be held liable, one of which is for “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.” C.R.S. § 33-41-104(1)(a). It was this exception that resulted in the nearly $7 million verdict against the Academy in 2019 and which was followed by trail closures on private property across the state, including several 14ers, such as those in the popular DeCaLiBron loop.
Here's how it happened.
In September 2008, a mountain biker, Nelson, was traveling down a trail on Academy property when he hit a sinkhole, crashed, and sustained a traumatic brain injury. The biker and his wife sued the Academy for damages. Signs at the trailhead prohibited motorized vehicles and identified the trail as a bike path, though another sign directed cyclists not to enter Academy property, through which the trail ran. Although the Academy viewed cyclists on its property as trespassers, it nevertheless knew cyclists and others used the trail.
The sinkhole covered the entire width of the trail but was difficult to see, particularly for bikers. It had been discovered a couple of weeks before Nelson’s crash by a biologist for the Fish and Wildlife Service, who was responsible for monitoring erosion and reporting issues to the Academy. Although the biologist observed and documented the sinkhole, he did not notify the Academy and the Academy did not post any signage or otherwise warn of the damage to the trail. After years of litigation, the U.S. District Court for the District of Colorado entered judgment against the Academy and in favor of Nelson due to the Academy’s willful failure to warn of a known dangerous condition.
The Nelson case presented a number of issues for landowners who permit recreational use on their properties.
One of the key issues Nelson decided was whether a landowner could be held liable for an accident on an unofficial trail, the use of which it did not expressly permit. Here, the court relied upon the language of the CRUS statute, which provides a shield from liability for a landowner who “directly or indirectly invites or permits” the use of its property for recreational purposes. C.R.S. § 33-41-103(1). Because the Academy knew the public used the path but took no steps to prevent it—particularly given the existence of the bike path sign—the court found the Academy indirectly permitted Nelson (and others) to use the path and could be liable under CRUS. Nelson v. United States, 827 F.3d 927, 932 (10th Cir. 2016).
The remainder of the case turned primarily on the failure to warn exception in the CRUS statute, particularly, what constitutes a “known” dangerous condition and a “willful” failure to warn of the same.
First, to constitute a known dangerous condition, the landowner must have actual knowledge, which is knowledge based upon “awareness of objective facts.” Nelson v. United States, 915 F.3d 1243, 1249 (10th Cir. 2019) (affirming trial court). Although the biologist did not believe the trail was then being used as an official trail for recreational purposes, he agreed that the sinkhole damage would present a dangerous condition to trail users were it open to the public. This was enough, the court held:
The fact that the path was not an official Academy trail, however, does not make it any less of a dangerous condition to the people using it for recreational purposes…[The biologist] saw and photographed a sinkhole the parties agreed was dangerous. He knew people used the path for recreation. And a large and difficult-to-see sinkhole on a paved path is dangerous even if few people travel the path.
Nelson, 915 F.3d at 1254.
Second, the court interpreted the “willful” failure to warn component of the statute, finding willful conduct to be conduct taken “voluntarily, purposefully and with a conscious disregard for the consequences of the conduct.” Nelson, 915 F.3d at 1250 (internal brackets omitted). Importantly, the trial court found that willfulness “does not require that a [landowner] be consciously aware that his acts or omissions create danger or risk to the safety of others." Id. (citing Nelson v. United States, 256 F. Supp. 3d 1136, 1159-60 (D. Colo. 2017)).
On appeal, the Academy took issue with the latter part of this definition, advocating for an interpretation that required the plaintiff that show the landowner consciously chose to expose others to risk by failing to warn. The 10th Circuit rejected this interpretation, noting that knowledge of a dangerous condition is a separate component of the statute and the Academy’s interpretation would render that language superfluous. Nelson, 915 F.3d at 1250. Though subtle, the distinction is important for landowners. Essentially, it means that an owner need not connect the dots between the failure to warn and the concomitant risks of that failure to the public to be held liable under CRUS. It is enough that an owner knows something is dangerous and decides, without a thought about the risks of doing so, not to give warning while also directly or indirectly permitting access to his land for recreational purposes.
Nelson sent shockwaves throughout Colorado, resulting in popular hiking trails through private property being closed to the public. Some of those include 14ers on the DeCaLiBron loop, a 7-mile loop hitting the summits of Mounts Democrat, Cameron, Lincoln, and Bross. Local organizations, such as the Colorado Mountain Club and 14ers Initiative, as well as national organizations like Access Fund the American Alpine Club have since advocated for a change to the laws and for the reopening of summits and trails throughout the state.
Since Nelson, there have been two attempts to amend the CRUS failure to warn exception in favor of landowners. The first came in 2019, which unsuccessfully attempted to strike out the entire failure to warn exception deemed applicable to the Academy.[1] That bill was ultimately tabled. Next, in 2023, a proposed bill sought to eliminate just the “willful” component of the failure to warn exception, but the bill suffered the same fate as its predecessor.
This year, the proponents of Bill SB24-058 have taken a different tack. Rather than delete the failure to warn exception, the proposed bill inserts a new section providing that a landowner cannot be held liable for failure to warn if he (1) posted a sign at the primary access point the user used to access the property before the injury occurred, (2) the sign includes language prescribed by the proposed amended statute, (3) the sign meets the minimum size requirements described in the proposed statute, (4) the sign is posted in a visible location at the primary access point, (5) the owner maintains photographic evidence of the sign, and (6) the sign describes the dangerous condition, use, structure, or activity that caused the injury or death.
Although helpful, the bill still leaves pitfalls of which landowners should be aware. First, “primary access point” is not defined, and there may be more than one. Landowners seeking to comply with the bill should post signs at all defined access points to recreational trails and waters on their property. Second, although the proposed amended statute includes required language for the sign, the warning is only sufficient if the sign describes the dangerous condition that actually causes injury. The proposed required language is as follows:
YOU ARE ENTERING THIS LAND FOR RECREATIONAL PURPOSES. IF YOU LEAVE THE DESIGNATED TRAIL, ROUTE, AREA, OR ROADWAY YOU WILL BE DEEMED TRESPASSING. THERE ARE INHERENT DANGERS AND RISKS ASSOCIATED WITH USING THIS LAND THAT MAY CAUSE SERIOUS INJURY OR DEATH, INCLUDING CHANGING WEATHER CONDITIONS; OPEN AND OBVIOUS VARIATIONS IN STEEPNESS, SURFACE CONDITIONS, AND CONSISTENCY OF TERRAIN, SUCH AS FOREST GROWTH, ROCKS, STUMPS, WATERWAYS, STREAMBEDS, CLIFFS, EXTREME TERRAIN, AND TREES; WILDLIFE; AND MINING OR AGRICULTURAL ACTIVITIES, STRUCTURES, REMNANTS, EQUIPMENT, OR OPERATIONS.
While the language may be broad enough to cover many or even most land-related backcountry pitfalls, landowners should be careful to expressly list or describe any use or condition existing on their property not covered by the above warning. Third, the sign must be visible and owners must maintain evidence of its existence. Changing seasons and natural growth means changing conditions, so landowners should periodically monitor the sign, refresh any faded or defaced portions of the warning, and ensure that the sign is not overcome by adjacent vegetation.
SB24-058 is currently under consideration. If the bill does not pass, landowners permitting use of their properties for recreational use should still consider placing the signs described in the bill at the primary access points of their properties as a warning mechanism to avoid liability.
Should you have questions about the content of this Legal Alert, please contact Sarah Kellner or Chelsea Reinhard.
[1] https://leg.colorado.gov/sites/default/files/documents/2019A/bills/2019a_1303_01.pdf