Nelson v. United States (256 F. Supp. 3d 1136, 2017)

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, 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 Var-ney. 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 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.

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. Var-ney, 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 1-25. (February 2014 Order, Undisputed Facts ¶8.) The Academy also 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 Pacts ¶ 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.)

15. The Academy maintained a series of official recreational and multi-use trails. (February 2014 Order, Undisputed Facts ¶ 14.) The asphalt path where the accident occurred was not part of the Academy’s official trail system. (Id. ¶ 16.) All of the official trails were unpaved, and were located west of 1-25. (Id., Findings of Additional Fact ¶ 51.) The path was also not identified on the Academy’s Real Property Record, and was not designated or maintained as a recreational trail. (Id. ¶ 49, Undisputed Facts ¶ 13.)

16. The Academy had a Trails Management Plan that provided guidance about the proper maintenance to be performed on official trails. (February 2014 Order, Undisputed Facts ¶ 17.) The Plan did not apply to unofficial trails. (Id. ¶ 18.)

17. In 2007, CH2M Hill Academy Services [“CHAS”] entered into a contract with the Academy. (February 2014 Order, Findings of Additional Fact ¶ 34.) The CHAS Contract required CHAS to maintain only those paths and trails that were identified on the Academy’s Real Property Record. (Id. ¶ 35). Since the asphalt path on which the biking accident occurred was not on the Academy’s Real Property Record, maintenance of the path did not fall within the scope of the CHAS contract. (Id., ¶ 36.)

18. The path has not been actively maintained by the Academy. (February 2014 Order, Findings oí Additional Fact ¶ 42.)

19. Jeffrey Thoma, the head of Academy security, did not monitor the path. (February 2014 Order, Undisputed Facts ¶ 11.)

C. Facts Relevant to CRUS Exception for Willful or Malicious Failure to Guard or Warn Against a Known Dangerous Condition, Use, Structure, or Activity Likely to Cause Harm

i. Dangerous Condition Likely to Cause Harm

20.. The sinkhole that Mr. Nelson encountered during the accident was the result of wash-out/erosion problems in the area. (February 2014 Order, Findings of Additional Fact ¶74.) More specifically, the sinkhole was the result of off-site water flow onto Academy property that.overwhelmed the culvert running under the path, causing a washout. (Id. ¶ 75.)

21. Off-site water flow onto Academy property in the area of the asphalt path was a known condition and problem that the Academy had been investigating, documenting, and addressing for many years before September 3, 2008. (February 2014 Order, Findings of Additional Fact ¶ 76.)

22. The sinkhole/washout encompassed the entire width of the asphalt path. (February 2014 Order, Undisputed. Facts ¶.39; see also Pis.’ Exs. 8, 9-2.)

23. The sinkhole/washout was on a path used by the public to walk, jog, and bicycle. (February 2014 Order,- Undisputed Facts ¶27;- Findings of Additional Facts ¶¶ 74,87.)

24. Mr. Nelson fell into the sinkhole while riding his bicycle on the path. (February 2014 Order, Undisputed Facts ¶ 38.) He was flung onto the path. (See PL’s Ex. 9.) . ⅜

-25. Analysis of Mr. Nelson’s bicycle by Defendant’s expert, Mr. Nicholas-Ault, indicates that Mr. Nelson struck the sink-hde with sufficient force to cause substantial damage to various parts of the bicycle. (February 2014 Order, Undisputed Facts ¶ 31.)

26. Dr. Brian Mihlbachler, who functioned for all intents and purposes as an Academy employee as explained below, testified that the sinkhole was large and readily visible during the day. However, third party witness Jesse Kurtz, who encountered the sinkhole while jogging the morning after Mr. Neis bn’s accident, thought the sinkhole was water until he was significantly closer to it. (February 2014 Order, Findings of Additional Fact ¶¶ 23,24.) I previously found, and reaffirm, that Mr.' Kurtz’s testimony was credible. (Id., Conclusions of Law ¶ 83; see also Pl.’s Ex. 8.) Moreover, photographs of the site indicated the washout/sinkhole was located in low area near bushes and other vegetation that created shadows. (See Pl.’s Exs. 8-1, 8-2, 8-4, 8-5.) Accordingly, I find that the evidence shows that the nature of the sinkhole/washout was difficult to ascertain by users of the path.-

27. Academy representative Jeffrey Thoma testified that the condition of the asphalt path with the sinkhole on September 3, 2008, was dangerous and hazardous for users of the path;- (February 2014 Order, Findings of Additional Fact ¶ 77.) The Academy’s Rule 30(b)(6) representative Greg Long testified that the sinkhole was a dangerous emergency situation that required immediate action and he believed that something had to be done on an emergency basis because of safety considerations. (Id., ¶ 79.)

28. The condition of the asphalt path with a sinkhole/washout did not meet Academy safety standards. (February 2014 Order, Findings of Additional Fact, ¶ 78.)

29. Dr. Mihlbachler testified that the condition of the path with the sinkhole would be a safety hazard for users of the path if it were an official Academy trail. Thus, if it were an official trail, he would have reported the condition of the path to maintenance to get it repaired. (February 2014 Order, Findings of Additional Fact, ¶¶ 90, 93.)

ii. The Academy’s Knowledge

a. Knowledge of the Path and Its Recreational Use

30. The path was located within the boundaries of the Academy property, and could be seen from 1-25. (February 2014 Order, Undisputed Facts ¶¶ 25, 40.) It was located within and on the Academy’s real property. (Id., Findings of Additional Fact ¶ 25.) Aerial photographs (Ex. 13) suggest the path has existed on Air Force Property since at least the 1960s. (Id. ¶ 39.)

31. Before Mr. Nelson’s injury, the Academy knew that members of the public used the path where Mr. Nelson was injured. (February 2014 Order, Findings of Additional Fact ¶ 37.) The path was used by members of the public for recreational purposes, such as walking, jogging, and bicycling. (Id., Undisputed Facts ¶ 27.)

32. There is evidence of a course of conduct and usage in connection with the asphalt path before Mr. Nelson’s accident, i.e., the evidence showed that the Academy knew that people were using the path for recreational purposes and did not affirmatively preclude people from its use. (February 2014 Order, Conclusions of Law ¶ 74; Tenth Cir. Op., p. 8.)

33. Dr. Brian Mihlbachler knew of the existence and condition of the path. (February 2014 Order, Findings of Additional Fact ¶ 86.)

34. Dr. Mihlbachler had seen five to six people use the path for walking, jogging, and biking prior to September 3, 2008. (February 2014 Order, Findings of Additional Fact ¶ 87.)

35. The public, including Mr. Nelson, could access the asphalt path before September 3, 2008, because there were no barricades, barriers, or fences to block the entrance to the path. (February 2014 Order, Findings of Additional Fact ¶ 48.)

36. Mr. Nelson had used the path before his accident, and knew that other people used the path. (February 2014 Order, Conclusions of Law ¶ 75.) He believed that the Academy permitted him and other members of the public to use the path for recreational purposes. (Id., Findings of Additional Fact ¶ 12.)

37. The Academy did not designate or maintain the path as a recreational trail. (February 2014 Order, Findings of Additional Fact ¶ 49.) It also did not take any affirmative action or steps to make the asphalt path available to the public or James Nelson. (See id. ¶¶ 52, 53, 55, 56.) It did not intend for the path to be a recreational trail, and it was not authorized for recreational use. (Id. ¶¶ 56, 57.)

38. Despite considering the path closed to the public and considering public users of the path to be unauthorized or trespassers, the Academy took no action prior to September 3, 2008, to prevent the public from entering its property to use the asphalt path. (Id., Undisputed Facts ¶ 19; Findings of Additional Fact ¶ 59.) The Academy also never prevented usage of the path or took steps to close it off to the public. (Tenth Circuit Op., p. 8; see also February 2014 Order, Findings of Additional Fact ¶ 64.)

39. While there were “Warning” signs prohibiting entry to Academy property posted around the perimeter of the base, there is no evidence that they were conspicuous to persons entering the property to access the asphalt path. (February 2014 Order, Findings of Additional Fact ¶ 46.)

40. At the time Mr. Nelson was injured on September 3, 2008, the north entrance to the asphalt path was marked with a sign that read: “Bicycle Path, No Motorized Vehicles.” (February 2014 Order, Undisputed Facts ¶ 20.) The United States knew the “Bicycle Path” sign was placed near the entrance to Academy boundaries, which gave the impression the path was open for general public use. (Tenth Circuit Op., p. 8.) The sign was located near an opening in the Academy’s boundary fence, through which access to the path was possible. (February 2014 Order, Findings of Additional Fact ¶ 67.) There was a similar sign near the south entrance to the path. (Id. ¶ 68.)

41. Academy representatives Debbie Barrett and Greg Long testified that because of the existence and placement of the “Bicycle Path, No Motorized Vehicles” signs, third parties would reasonably believe that they were authorized or invited to go on the path and ride their bicycle. (February 2014 Order, Findings of Additional Fact ¶ 73.)

42. A reasonable person would likely believe the Bicycle Path signs were, at the very least, authorized by the Academy, given that the signs were next to and clearly related to the paved path on Academy property. (February 2014 Order, Conclusions of Law ¶75.) Academy officials admitted that there is no way the public could have known that the signs were not Academy signs. (Id.)

43. The evidence supports a finding that the Bicycle Path signs would allow members of the public, including Mr. Nelson, to reasonably believe that the Academy consented to the public’s use of the path for biking. (February 2014 Order, Conclusions of Law ¶ 75.) This is also supported by the fact that the path was open to and accessible by the public through an engineered entry point/opening in the Academy’s boundary fence. (Id.) Moreover, the “Bicycle Path” supports a finding of an implied representation by the Academy that the public was requested, expected, or intended to enter or remain on the asphalt path. (Id. ¶ 69.)

44. The Academy did not remove the “Bicycle Path, No Motorized Vehicles” signs prior to September 3, 2008, though it had the opportunity to do so, and could have done so at any time without the need for a work order. (February 2014 Order, Undisputed Facts, ¶¶ 21-26, Findings of Additional Fact ¶¶ 97-99; Tenth Circuit Op., p. 8.)

45. Prior to Mr. Nelson’s injury, CDOT “offered to remove the sign, but the Academy ignored that offer.” (Tenth Circuit Op., p. 8.)

b. Knowledge of the Condition at Issue

46. Dr. Mihlbachler was employed from 2000 - 2008 by the United States Fish and Wildlife Service as a biologist. (February 2014 Order, Undisputed Facts ¶ 40.) He was stationed at the Academy as a Natural-Resources Manager (id. ¶ 41) pursuant to the Sikes Act, which tasks federal agencies with the development and implementation of natural resource management plans. (See United States’ Proposed Findings of Fact and Conclusions of Law and Br. in Support, Ex. A [hereinafter “Def.’s Ex. A”], Trial testimony of Dr. Mihlbachler [“Mihlbachler Testimony”], 47:4-24). His job was to implement the Academy’s natural resources management plan. (Id. 47:21-24.)

47. Dr. Mihlbachler’s job at the Academy involved going out and surveying areas throughout the Academy and monitoring the landscape. (February 2014 Order, Undisputed Facts ¶ 42.) He had responsibility for managing the natural resources on the Academy’s 18,500 acres. (Id.) Dr. Mihlba-chler had .additional responsibility to .determine the impact of erosion on an endangered species, the Preble’s .Meadow Jumping Mouse. (Id.) He was managing a number of multi-million dollar .erosion remediation projects in the area. (Id.)

48. Dr. Mihlbachler was part of a monitoring program around the Academy. .Installation, monitoring “some pretty serious erosion and sedimentation issues, loss, of habitat along some of the major drainages coming into the installation.” (Def.’s Ex. A, Mihlbachler Testimony, 50:3-10.) Consistent with this, on August 20, 2008, when Dr. Mihlbachler encountered and photographed the sinkhole, his “purpose out there on that day” was photo-documenting, “eyes on the ground, looking at what’s happening along our boundary and downstream from there.” (Id. 50:11-14.)

49. Thus, Dr. Mihlbachler also was looking at the erosion effects on Academy property located on the east side of 1-25. (February 2014 Order, Undisputed Facts ¶ 43.) He had responsibility for investigating the erosion problems and had observed these problems in the area; including-the east side of 1-25, for many years. (Id., Findings of Additional Fact ¶ 84; see also Am. Ex. 2 to Pl.’s Proposed Findings of Fact and Conclusions of Law, With-Argument, ECF No. 216-1 [“Am. Ex. 2”], Mihl-bachler Testimony 6:15-25 — testifying that part of his job duties have “included keeping watch on those eastern areas” of the Academy “to see how off-campus water flows might be impacting the property”, as “[t]he academy, since the mid-1990s, identified that they were having serious erosion and — issues along the eastern boundary, in particular due to the expansion of development along the boundary, which resulted in a lot of new impervious surface, which contributes to more frequent flows in those drainages, as well as higher volumes and rates of flow”; see also Def.’s Ex. A, Mihlbachler Testimony, 13:17-21— “[A]s a person with natural resource, responsibilities that encompass virtually all the landscape within the boundaries of the academy,” [Dr. Mihlbachler] had “ample opportunity to survey areas such as the areas east of 1-25”.)

50. Dr. Mihlbachler testified that as part of his duties, he spends a large amount of time in the field and driving into remote areas of the Academy where the security forces and others do not routinely go. As a result of this, he is another source of information regarding maintenance and infrastructure. (February 2014 Order, Findings of Additional Fact ¶ 83). Dr. Mihlbachler was part of the “eyes on the ground” for the Academy, checking areas that the security forces did not get to that often and reporting to the appropriate party if issues were identified. (Id., ¶ 80.)

51. On August 20, 2008, as part of his work for the Academy, Dr. Mihlbachler took a number of. photographs of erosion problems caused by storm water draining onto the Academy property from residential neighborhoods east of the Academy. (February 2014 Order, Undisputed Facts ¶¶ 43, 44.)

52. Dr, Mihlbachler photographed the sinkhole on the path on August 20, 2008, two weeks before Mr. Nelson was injured by that sinkhole. (February 2014 Order, Undisputed Facts ¶45.) Dr. Mihlbachler was the - only Academy employee who was actually aware of the sinkhole before the September 3,2008, accident: (Id.)

53. Dr. Mihlbachler did not report the sinkhole or show the photographs to anyone else before Mr. Nelson was injured on September 3, 2008. (February 2014 Order, Undisputed Facts ¶ 47.)

54. He testified that the trail management plan did not reference any asphalt surface trails. (Def.’s Ex.- A, Mihlbachler Testimony, 55:9-16.) He further testified that to his understanding there wás no rule or regulation in the trail management plan or otherwise that would have required fixing a hole on an unofficial path such as the asphalt path. (February 2014 Order, Findings of Additional Fact, ¶ 91; Def.’s Ex. A, Mihlbachler Testimony, 55:4-5.) .

55. However, Dr. Mihlbachler also testified that the Academy’s trail management plan contains guidelines, about what constitutes a safe trail for the users, and that “criteria would have applied in this situation [to the asphalt path] had I known that it was designed — ... as a trail, yes.” (Def.’s Ex. A, Mihlbachler Testimony, 75:10-17).

56. Moreover, while Dr. Mihlbachler had never seen the bicycle path sign near the north end of the path (February 6, 2014 Order, Undisputed Facts ¶ 52), he testified that if he been aware of the sign or aware that the path was a recreational trail that was getting used, he would have either removed the path because it did not fit with the official Trails Management Plan or it would have been incumbent on him to take the proper action to prevent a safety hazard. This would have been required as part of his duties. (Id., Findings of Additional Fact ¶ 93.) He would have thought that the Academy was sanctioning the use of that trail for recreational purposes and, as Trails Manager, it would have been incumbent upon him “to take the appropriate action to keep the users of that trail safe.” (Def.’s Ex. A, Mihlbachler Testimony, 75:6-9.)

57. i Dr< Mihlbachler testified that he believes that there is an expectation these days for all government employees to say something if they see something. (February 2014 Order, Findings of Additional Fact ¶ 96.)

58. I previously found, and now reaffirm, that for all intents and purposes, Dr. Mihlbachler functioned as an Academy employee; and had responsibilities related to Academy safety and security and reporting safety concerns. (February 2014 Order, Findings of Additional Fact ¶¶81, 82; Conclusions of Law ¶ 71.)

59. Dr. Mihlbachler chose not to do anything about the sinkhole when he encountered it and photographed it. His decision not to do anything about the sinkhole or report it to anyone was based on his perception that it was on the CDOT and MVEA easement for their use and was not the Academy’s responsibility. (February 2014 Order, Findings of Additional Fact ¶ 94.) He “didn’t see any sense of urgency to have the hole repaired by them or the Academy.” ..(Det’s Ex. A, Mihlbachler Testimony, 55:22-56:5; see also February 2014 Order, Undisputed Facts ¶ 51.)

60. Thus, “in terms of the significance of the damage relative to other areas” that he was working on, Dr. Mihlbachler “didn’t see a need for the academy necessarily to take action on the damage that had occurred on the trail.” (Am. Ex. 2, Mihlba-chler Testimony 61:9-13.) He “would look more to Mountain View Electric and CDOT to identify the damage and make a determination about how they needed to proceed on any sort of maintenance or repair to maintain their easement.” (Id. 61:14-17.)

61. Dr. Mihlbachler had seen CDOT and MVEA service crews using the path as a service road from 2000-2008. (February 6, 2014 Order, Undisputed Facts ¶ 49.)

62. Dr. Mihlbachler’s decision not to do anything about the sinkhole on the path also was based on the fact that he did not think people were using the path for recreational purposes. (February 2014 Order, Undisputed Fact ¶¶ 50; Findings of Additional Fact ¶¶ 92, 94). In his mind at that time, he “didn’t feel the Air Force Academy considered it to be a trail of any sort.” (Def.’s Ex. A, Mihlbachler Testimony, 44:8-9.) When he photographed the path, “at that time I wasn’t looking at this as a bike path. Again, I was looking at this as a service path either for” MVEA or CDOT. (Id., 24:21-24).

63. As he did not think the path was being used by pedestrians or bikers, the thought never occurred to Dr. Mihlbachler that the damage to the path would create a safety hazard. (February 6, 2014 Order, Findings of Additional Fact ¶ 92.) He did not think that the hole was likely to cause anyone harm. (Def.’s Ex. A, Mihlbachler Testimony, 56:21-23; 57:25-58:3.)

64. Dr. Mihlbachler also did not believe the path was an official recreational trail, or that outside users were invited or permitted to use the path for recreation. (February 2014 Order, Undisputed facts, ¶ 50).

65. When he saw the sinkhole on August 20, 2008, Dr. Mihlbachler did not see any members of the public on the path. (Def.’s Ex. A, Mihlbachler Testimony, 26:19-21).

66. Dr. Mihlbachler had been stationed at the Academy for over eight years before the accident. (Def.’s Ex. A, Mihlbachler Testimony, 26:22-24), and he had lived in the Colorado Springs area for ten to eleven years. (Id. 12:22-13:1). During this period, he only saw members of the public use the path on five or six occasions, despite the fact that he traveled on the path once a month or so. (February 2014 Order, Findings of Additional Fact ¶¶ 87, 89.) He saw most of these people before 2005, when Struthers Road was built. (Id., ¶ 87; Def.’s Ex. A, Mihlbachler Testimony, 27:7-10.) The construction of Struthers Road provided an alternate route across Black Forest Creek so that Dr. Mihlbachler thought the traffic probably moved off the path. (February 2014 Order, Findings of Additional Fact ¶ 87; Def.’s Ex. A, Mihlbachler Testimony, 27:4-16.)

67. Dr. Mihlbachler only saw people using the path when he was off-duty, driving along 1-25. (Defs.’ Ex. A, Mihlbachler Testimony, 58:12-19.) He never saw anyone using the path at night. (February 2014 Order, Findings of Additional Fact ¶ 88).

68. Dr. Mihlbachler understood at the time he saw the sinkhole that he had discretion for making decisions about whether to fix eroded areas he encountered on an unofficial path. (Def.’s Ex. A, Mihlbachler Testimony 55:17-21.)

69. 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. He considered the sinkhole insignificant in relation to the large-scale erosion problems in the area. (February 2014 Order, Undisputed Facts ¶ 46; Findings of Additional Fact ¶ 85).

iii. Failure to Guard or Warn Against the Dangerous Condition

70. I previously found, and now reaffirm herein, that the Academy did not take any measures to guard against or warn of the sinkhole condition prior to September 3, 2008. (February 6, 2014 Order, Findings of Additional Fact ¶ 60; see also Conclusions of Law ¶23 — “the evidence shows that the [Academy] did not maintain the path, repair it, or warn against the dangerous condition when it was found because it believed that CDOT or MVEA were responsible for the path”, ¶¶ 28, 33, 35.) Indeed, this was stipulated to by the parties. (Id., Conclusions of Law ¶ 71.)

71. I also previously found, and reaffirm herein, that the Academy unreasonably failed to exercise reasonable care to protect against a danger — the sinkhole on the path caused by erosion — of which it actually knew. (February 6, 2014 Order, Conclusions of Law ¶70.) The evidence demonstrates that the Academy knew there was extensive drainage and erosion problems in the area where the path was located, knew through Dr. Mihlbachler of the actual existence of the sinkhole prior to Mr. Nelson’s accident, admitted that the sinkhole was a dangerous condition, and did nothing to protect anyone from the danger that the sinkhole presented to those using the path for biking or other purposes. (Id.) I found from the evidence that the Academy failed to use reasonable care to protect against the danger on the property, and that its unreasonable failure to exercise reasonable care with regard to the sinkhole was the cause of Mr. Nelson’s injuries. (Id.)

72. It is undisputed that the path was located within the boundaries of the Academy property. (Id., Undisputed Facts, ¶¶ 1, 3, 5.)

III. CONCLUSIONS OF LAW

A. The CRUS Exception and Statutory Construction Principles

1.The CRUS places the risk of injury for recreational activity upon the recreational user rather than the landowner, see Colo. Rev. Stat. § 33-41-103, subject to certain specifically enumerated exceptions to its limitations on landowner liability. One of these exceptions to liability is a landowner’s “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.” Golo. Rev. Stat. § 33-41-104(1): (“Nothing in this article limits in any way any liability which would otherwise exist: (a) For willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm”.)

2. (Colo. Rev. Stat. § 33-11-105 also recognizes landowner liability for such conduct,' stating “[njothing in this article shall be construed to ... affect in any manner any liability for willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm....”)

3. I previously found that Mr. Nelson was an invitee or licensee under the Colorado Premises Liability Act. (February 2014 Order, Conclusions of Law, ¶¶ 68, 72.) The Tenth Circuit confirmed that the Academy knowingly permitted Mr. Nelson to use the bike path; thus he was a licensee or invitee. Although the Academy could not be liable for negligence under CRUS, the Tenth Circuit found that the Academy would be liable despite the limitations on liability in the CRUS if it willfully or maliciously failed to guard or warned against, a known dangerous condition. (Tenth Circuit Op., pp. 11-12.)

4. The Colorado appellate courts have not specifically construed this section of the CRUS. “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). “ ‘If there be no decision by that court then federal authorities must apply what they find to be the state law after giving proper regard to relevant rulings of other courts of the State.’ ” Folks v. State Farm Mut. Automobile Ins. Co., 299 Fed.Appx. 748, 757 (10th Cir. 2008) (quotations and internal quotation marks omitted).

5. The objective of a court interpreting a state statute is to effectuate the intent and purpose of the legislature. Roup v. Commercial Research, LLC, 349 P.3d 273, 275 (Colo. 2015); Farmers Group, Inc. v. Williams, 805 P.2d 419, 422 (Colo. 1991). Statutory interpretation is a question of law. W. Fire Truck, Inc. v. Emergency One, Inc., 134 P.3d 570, 573 (Colo. App. 2006).

6. The court should 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). The statute should, where possible, be construed “as a whole, giving meaning to all its parts.” Folks, 299 Fed.Appx. at 757; see also Reno v. Marks, 349 P.3d 248, 253 (Colo. 2015) (the court must “examine the statutory language in the context of the statute as a whole and strive to give ‘consistent, harmonious, and sensible effect to all parts’”) (quotation omitted). “[I]f the language of the statute is clear and the intent of the General Assembly may be discerned with certainty, [the court] need not resort to other rules of statutory interpretation.” W. Fire Truck, Inc., 134 P.3d at 573.

7. I now turn to the pertinent provision of the CRUS, Colo. Rev. Stat. § 33-41-104(l)(a), examining each section of the statute to determine its applicability.

B. Whether the Washout/Sinkhole Was A Dangerous Condition Likely To Cause Harm

8. “Dangerous condition” is not defined in the CRUS, but .a plain meaning can be ascribed to that term. The dictionary defines “dangerous” as “exposing to or involving dangér; able or likely to inflict injury . or harm.” https://www. merriam-webster.com/dictionary/ dangerous. “Danger” is defined as “exposure or liability to injury,' pain, harm, or loss.” Id. The Colorado courts ’have confirmed this meaning of “danger.” See Fleury v. IntraWest Winter Park Operations Corp., No. 13CA0517, - P.3d -, -, 2014 WL 554237, at *3 (Colo. App. Feb. 13, 2014) (the common meaning of danger is a “[p]eril; exposure to harm, loss, pain, or other negative result”) (quoting Black’s Law Dictionary 450 (9th ed. 2009)).

9. Also, the Colorado legislature defined “[djangerous condition” in the Colorado Governmental Immunity Act as “a physical condition of a facility or the use thereof that constitutes an unreasonable risk to the health or safety of the public....” Colo. Rev. Stat. § 24-10-103(1.3). I adopt these definitions of the word “dangerous”.

10. I previously found ip my February 2014 Order that the sinkhole/washout was a dangerous condition. (February 6, 2014, Order, Conclusions of Law, ¶¶ 70, 71, 77). I found that the sinkhole on the path caused by erosion was a danger that the Academy unreasonably failed to exercise reasonable care to protect against, (February 6, 2014 Order, Conclusions of Law ¶ 70; see also Conclusions of Law ¶¶ 33, 35 — noting that the sinkhole was a “specific known hazard.”) I adopt and incorporate my prior findings that the sinkhole/washout that existed on the Academy property was a dangerous condition.

11. I also find that the sinkhole was a dangerous condition “likely to cause harm” to users of the path, and make the following additional conclusions concerning this issue.

12. The evidence shows that the path was an asphalt path, designated for bicycle use as indicated by Bicycle signs near the path. As such, any reasonable person, including the Academy, would understand that people would be riding bicycles on the path, and the Academy, in fact knew that people used the path for bicycle riding.

13. The sinkhole that Mr. Nelson encountered during the accident was the result of wash-out/erosion problems in the area, and was caused by off-site water flow onto Academy property that overwhelmed the culvert running under the path.

14. This off-site water flow onto Academy property in the area of the asphalt path was a known condition and problem that the Academy had been investigating, documenting, and addressing for many years before Mr. Nelson’s accident on September 3, 20081

15. The sinkhole/washout condition was substantial. It encompassed the entire width of the asphalt path, and photographs presented at trial showed the depth and magnitude of the sinkhole. (Pl.’s Exs. 8-1, 8-3, 8-6, 9-2.)

16. Evidence presented at trial also established that the sinkhole was difficult to see. Photographs of-the site indicate the washout/sinkhole was located in a low area near bushes and other vegetation that created shadows. Further, witness Jesse Kurtz, who was jogging on the path the morning after Mr. Nelson’s accident, thought the sinkhole, was water until he was significantly closer to it. I previously found and continue to find Mr. Kurtz’ testimony on this issue to be credible. I also find that his testimony is substantiated by photographs presented at trial as exhibits. (Pl.’s Ex. 8-2, 8-4, 9-1.)

17. Accepting the United States’ argument that the term “likely” means a high probability of occurring, or “in all probability”, and requires more than a potential hazard, I find that a sinkhole on a recreational path with significant size and depth, that covers the entire width of the path and is hard to see, and is on a path that the Academy knew was used by bicyclers, would have a high probability of causing harm to a person riding them bicycle on the path. As I noted in the February 2014 Order, “a sinkhole of the magnitude in this case (covering the -width of the path) is not the kind of hazard ordinarily presented on the property of the type involved.” (Id., Conclusions of Law ¶ 77.) Indeed, the sinkhole/washout was in fact dangerous and did in fact cause harm. When Mr. Nelson encountered the sinkhole/washout on his bicycle, he was flung off his bicycle onto the asphalt, causing him to suffer serious injuries and his bicycle to have substantial damage.

18. My finding that the sinkhole was a dangerous condition likely to cause harm is supported by admissions of Academy representatives at trial. Greg Long testified that the sinkhole was a dangerous emergency situation that required immediate action, and he believed that something had to be done on an emergency basis because of safety considerations. Jeffrey Thoma testified that the condition of the path with the sinkhole/ washout, was dangerous and hazardous for users of the path. Dr. Mihl-bachler testified that the condition of the asphalt path with the, sinkhole, which he observed before Mr. Nelson’s accident, would be a safety hazard for users of the path — if it .were an .official'Academy! trail. 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. Indeed, the evidence established that the condition of the asphalt path with a sinkhole did not meet Academy safety standards. Similarly, Dr. Mihlbachler’s subjective belief that -it was not a hazard based on his belief that the path was not being used for recreational purposes or was a service road used by CDOT or the MVEA is not relevant to whether the path was, in fact, dangerous and likely to cause harm.

19. The United States argues, however, that in assessing whether a “known dangerous condition” is “likely to cause harm,” it is assumed that recreational users will act with reasonable care. Here, however, I found in my February 2014 Order, and reaffirm herein, that Mr. Nelson was not at fault or negligent. (February 2014 Order, Conclusions of Law ¶ 81-86.) Thus, there is no evidence that he failed to act with reasonable care. While the United States noted in its proposed Findings of Fact and Conclusions of Law that Dr. Mihlbachler never saw anyone use the path at night (ECF No. 223, at p. 28 ¶ 33), I found that it was still light outside when Mr. Nelson encountered the sinkhole, and that he would not have needed artificial illumination while riding his bicycle on the path. (February 2014 Order, Conclusions of Law ¶ 82; see also Findings of Additional Fact, ¶¶ 16,19, 20.)

20. In conclusion, I find that the evidence establishes that the sinkhole on the path on Academy property constituted a dangerous condition likely to cause harm.

C. Whether the United States Knew of the Path and the Dangerous Condition

21. The Academy knew the path existed for decades prior to September 3, 2008. There is evidence that the asphalt path could be seen from 1-25. The Academy further knew of the significant erosion problems in the immediate area of the path. The evidence showed that significant off-site water flow onto Academy property in the area of the asphalt path was a known condition and problem that the Academy had been addressing for many years before September 3, 2008.

22. The United States admitted that, before Mr. Nelson’s accident, it knew members of the public used the path where Mr. Nelson was injured. (Pl.’s Ex. 107, Requests for Admission, #8). Furthermore, as part of the law of the case as established by the Tenth Circuit, the Academy knew the public was using the bike path for recreational purposes — a necessary finding for the Tenth Circuit’s conclusion that the CRUS applied. (Tenth Circuit Op., p. 11 — “The Academy knew of the public’s use of the path and declined the opportunity to end that use.”)

23. The United States argues, however, that the court cannot consider the collective knowledge or collective intent of the Academy regarding the sinkhole. It asserts that, in the context of a claim under the FTCA and based on the text and legislative intent of the CRUS exception, the Plaintiffs must show that a particular federal employee acted in a manner that constitutes a “willful or malicious failure to guard or warn against a known dangerous condition ... likely to cause harm.” Colo. Rev. Stat. § 33-41-104. I find that this argument is not supported by the text of the statute, and the United States has not cited any authority that this is the legislative intent of the statute. Thus, I turn to whether the United States’ position is supported by the fact that this case is brought under the FTCA.

24. The FTCA provides a limited waiver of sovereign immunity such that the United States can be held liable for injuries or losses “caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person,' would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Thus, as the United States acknowledges, its liability essentially arises under a theory of respondeat superior. Fowler v. United States, 647 F.3d 1232, 1237-38 (10th Cir. 2011). “[T]he Government’s liability under the FTCA is limited to that of a private employer under like circumstances.” Haceesa v. United States, 309 F.3d 722, 728-29 (10th Cir. 2002).

25. Under the respondeat superi- or doctrine, “an employer or principal is liable for acts that its employee or agent commits on behalf of the employer or principal within the scope of the employment or agency.” Smith v. Multi-Fin. Sec. Corp., 171 P.3d 1267, 1271 (Colo. App. 2007). It is “ ‘based on the theory that the employee acts on behalf of the employer when the employee is acting within the scope of his authority.’” Fowler, 647 F.3d at 1238 (quotation omitted). The liability of the employee is imputed to the employer in that situation. See McCall v. Roper, 685 P.2d 230, 232 (Colo. App. 1984).

26. While the United States argues that the collective knowledge of its employees or agents is not imputed to the United States in an FTCA case, I find that this is not supported by any case under the FTCA that has analyzed the “willful or malicious” exception to liability under the recreational use statutes. Instead, those cases looked at the collective knowledge of the United States agency in deciding whether its conduct was willful or malicious, and did not focus on whether any particular employee’s conduct met that standard. See, e.g., Rost v. United States, 803 F.2d 448, 451-452 (9th Cir. 1986) (looking at the knowledge of service employees who knew of the condition for at least a year before the accident and finding as a result that “the Service consciously failed to act because it had other priorities”) (emphasis added); Mandel v. United States, 719 F.2d 963, 967 (8th Cir. 1983) (looking at recommendation of a ranger “together with the knowledge of the National Park Service of the existence and hazard of submerged rocks” and its failure to know or warn of submerged rocks to determine whether the Service was liable under the willful or malicious exception) (emphasis added); Sulzen v. United States, 54 F.Supp.2d 1212, 1218 (D. Utah 1999) (looking at knowledge and testimony of a park ranger and a Forest Supervisor as well as a Forest Service memoranda indicating that “the task force ... was concerned “that unrecorded near misses have occurred at Hanging Rock” to determine if the Forest Service knew of the falling rocks’ before the accident”) (emphasis added); Soto v. United States, 748 F.Supp. 727, 729-730 (C.D. Cal. 1990) (finding actual knowledge that a peril existed based on evidence that Forest Service personnel assisted in recovery of the body, a recommendation by a district employee about a warning sign, and fact “District personnel” had observed diving at the pools). I find these cases persuasive, and they convince me that I may look at the collective knowledge of the Academy in regard to the willful and malicious exception to the CRUS.

27. Looking at what the various employees knew collectively to determine the United States’ knowledge makes sense in the context of a large organization such as a federal agency where information is often compartmentalized amongst different departments. In that situation, an organization should, in my opinion, be charged with the. collective knowledge of its employees, particularly where the United States.is seeking to avoid liability under a narrow exception to a state recreational use statute. As explained by one court in finding that a corporation, may be charged with the collective knowledge of its. employees: - •!

Corporations often compartmentalize information, whether for efficiency, practicality, or both. But such compartmentalization does not shield a company from knowledge maintained by employees in such a structure.

New York v. United Parcel Serv., 15-cv-01136 (KBF), 2017 WL 1135257, at *65 (S.D.N.Y. March 24, 2017) (quotation omitted).

28.’ Section 5.03 of the Restatement (Third) of Agency also supports this concept It notes that “[organizations gdn-erally function by subdividing work or activities into specific functions that are assigned to different people.” Id. “An' organization’s large size does not in itself defeat imputation, nor does the fact that an organization has' structured itself 'internally into separate departments or divisions.” Id. (“Organizations are treated as possessing the collective knowledge of their employees and other agents, whén that knowledge is material to the agents’ duties .,. ”).

29. My finding that the collective knowledge of the Academy may be considered is also supported by the Colorado Court of Appeals’ decision in Jacobs v. Commonwealth Highland Theatres, Inc., 738 P.2d 6 (Colo. App. 1986). In assessing whether exemplary damages was appropriate in-a personal' injury action brought against the theatre owner, the court looked collectively at the fact that the “defendants’ agents knew of the danger” and took no steps to correct it. Id. at 10. It then concluded “[o]n the basis of evidence presented concerning defendant’s awareness of the hazard and its repeated failure to remedy it ... that plaintiff presented a prima facie case of wanton and reckless disregard which would support an award of exemplary damages.” Id.

30. While the United States has cited cases declining to consider the collective knowledge of the corporation’s agents, these cases involved a different situation; namely, an intentional tort. Thus, in Helf v. Chevron U.S.A., Inc., 361 P.3d 63 (Utah 2015), a former employee who waá injured as a result of exposure to toxic gases sued the employer under the intentional injuries exception to the exclusive remedies provision of the Workers’ Compensation Act. To prevail in her suit she had to show that an agent of the employer intentionally'caused her injury. Id. at 69. The court found in that situation that “the collective knowledge of multiple employees cannot ‘establish the state of mind requisite to the commission of an intentional tort of a corporation.’” Id. (quotation omitted). Similarly, in Woodmont, Inc. v. Daniels, 274 F.2d 132, 137 (10th Cir. 1959), the Tenth Circuit acknowledged that it would allow in some cases a corporation to be “held constructively liable for the composite knowledge of all its agents, whether acting in-unison or not”, but was unwilling to do so where an intentional tort was alleged— in that case fraud. These cases do not, in my opinion, impact this case that does not involve an intentional tort. Instead, this case is more akin to the Jacobs case where the court was assessing-whether the the-atre’s conduct was willful and reckless in determining whether an award of exemplary damages was appropriate.

31. Even if I were to disregard the collective knowledge of the Academy, however, the evidence shows that Dr. Mihlba-chler knew of the significant erosion problems in the immediate area of the path and its condition prior to Mr. Nelson’s accident. Indeed, Dr.' Mihlbachler’s work included responsibility for investigating those substantial erosion and drainage problems. As part of his duties he was in the area of the path about once a month. Dr. Mihlbachler also had seen people use the path for walking, jogging, and biking prior to September 3,2008.

32. On August 20, 2008, as part of his work for the United States, Dr. Mihlba-chler took a number of photographs of erosion problems caused by .storm water draining onto the property from residential neighborhoods east of the property. The photographs Dr. Mihlbachler took on that day included photographs specifically documenting the sinkhole/washout of the asphalt path. The photographs show the sinkhole/washout of the path in the same condition as it was when Mr. Nelson encountered it two weeks later on September 3, 2008. (Cf. Pl.’s Ex. 2-taken by Dr. Mihlbachler-with Pl.’s Exs. 8, 9.).

33. The sinkhole/washout on the path that Mr. Nelson encountered during the accident was the result of the erosion caused by the off-site water flows onto Academy property — the very problem that the Academy knew of and was investigating through Mr. Mihlbachler on the day he discovered this dangerous condition on the path. Indeed,-Dr. Mihlbachler was in that area specifically for the purpose of evaluating the erosion effects of - groundwater flow. Thus, the United-States, through.Dr. Mihlbachler, was investigating erosion problems and specifically found on August 20, 2008, an erosion problem that created a dangerous condition on the asphalt path; namely, the sinkhole/washout.

34. Dr. Mihlbachler believed himself to function essentially as. an Academy employee and I previously concluded that, for all intents and purposes, Dr. Mihlbachler functioned as an Academy employee and had responsibility for reporting safety concerns. (February 2014 Order, Findings of Additional Fact ¶ 81;. Conclusions of Law ¶ 71). These findings and conclusions are reaffirmed.

35. I conclude, as I previously did, that Dr. Mihlbachler was an agent of the Academy, and his knowledge of the sinkhole/ washout is imputed, to the Academy by operation of law. (February 2014 Order, Conclusions of Law ¶ 71). See People v. Morrow, 682 P.2d 1201, 1206-1207 (Colo. App 1983) (“ ‘[T]he rule, established in this as well as other jurisdictions, is that the knowledge of the agent is knowledge of the principal, when the agent acts within the scope of his authority”’) (quoting Weghorst v. Cnty. Fire Ins. Co., 96 Colo. 564, 45 P.2d 625 (1935)); Hummel v. First Nat’l Bank, 2 Colo.App. 571, 32 P. 72, 75 (1892) (principal is chargeable with information acquired by agent).

36. Accordingly, I conclude that the United States', including its representative Dr. Mihlbachler, knew that the path existed, knew significant erosion problems existed in that area, and specifically knew on August 20, 2008, two weeks before Mr. Nelson was injured, of the existence of the dangerous condition on the path caused by erosion.

D. Whether the Academy Guarded or Warned Against The Known Dangerous Condition.

37. The parties stipulated and the evidence is undisputed that the United States did not take any measures to guard against the dangerous condition or warn anyone using the path of the sinkhole/washout condition before Mr. Nelson was injured. That is dispositive on this issue.

38. The Academy also took no action to warn about the significant erosion and washout conditions caused by off-site water flow onto Academy property in the area of the asphalt path, which was a known condition, or to guard users of the asphalt path in regard to this condition.

39. Moreover, despite knowing of the significant erosion issues and the fact that the public was using the asphalt path for recreational purposes, the Academy did not monitor the trail (per the testimony of Mr. Thoma) or maintain it. It also did not identify the path on its Real Property Record or its official trail system so that it would be maintained. The Academy instead appeared to mistakenly believe that CDOT and/or MVEA was responsible for maintenance of the path. However, it is undisputed that the sinkhole was on its property and it did not need permission from CDOT or anyone to take action with respect to the sinkhole. (February 2014 Order, Findings of Additional Fact ¶¶ 33, 27.) I find the same would be true as to other erosion issues. The Academy thus had the ability to maintain the path and fix the sinkhole. This is also supported by the testimony of Dr. Mihlbachler that he had discretion to fix the hole but did not do so because it was not a high priority, the testimony of Mr. Van Winkle that it was the Academy’s responsibility to fix the path and to upkeep the property, and the fact that the sinkhole was in fact fixed by the Academy after the accident.

40. Further, it is undisputed that the Academy took no action prior to September 3, 2008, to prevent the public from entering its property to use the path, despite knowing that there were significant erosion issues in the area and despite knowing of the sinkhole/washout approximately two weeks prior to Mr. Nelson’s accident. The Academy also did nothing to remove the “Bicycle Path, No Motorized Vehicles” signs prior to September 3, 2008, even though CDOT offered to remove one of the signs, and even though the Academy knew that the signs gave the impression that the path was open for general public use. It did nothing to block the path, to close off the engineered fence opening, or to remove the path prior to September 3, 2008.

41. There is no evidence that the Academy could not have taken actions- to warn or guard against the danger before September 3, 2008. In fact, it took immediate action to guard and warn against the dangerous condition after Mr. Nelson was injured.

42. In short, as I previously found and now reaffirm, the evidence demonstrates that the Academy knew there was extensive drainage and erosion problems in the area where the path was located, knew through Dr. Mihlbachler of the actual existence of the sinkhole prior to Mr. Nelson’s accident, admitted that the sinkhole was a dangerous condition, and did nothing to protect anyone from the danger that the sinkhole presented to those using the path for biking or other purposes. (February 2014 Order, Conclusions of Law ¶ 70.)

E. Whether the United States’ Failure To Warn Or Guard Against The Known Dangerous Condition Likely to Cause Harm Was Willful

43. Under the CRUS, no immunity is granted to a landowner for a “willful or malicious’ failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.... ” The Ninth Circuit has held that because recreational use statutes are in derogation of common law* rules of tort liability, they must be narrowly construed and the “courts must take care to avoid an overbroad interpretation of the statute that would afford immunity that was not intended.” Ducey v. United States, 713 F.2d 504, 510 (9th Cir. 1983). Furthermore, “exceptions to the statute ... must be given the broadest reading that is within the fair intendment of the language used.” Id. (emphasis in original). This appears to be consistent with Colorado law, which narrowly construes exceptions to immunity that are in derogation of Colorado’s common law, and broadly construes exceptions. See St. Vrain Valley Sch. Dist. RE-1J v. A.R.L., 325 P.3d 1014, 1019 (Colo. 2014) (“Because governmental immunity under the Colorado Governmental Immunity Act [“CGIA”] derogates Colorado’s common law, we narrowly construe the CGIA’s immunity provisions, and as a logical corollary, we broadly construe the CGIA’s waiver provisions”); Young v. Brighton Sch. Dist. 27J, 325 P.3d 571, 576 (Colo. 2014). Here, also, the CRUS and its limitation on liability would appear to be in derogation of Colorado law and would need to be narrowly construed, while the exception at issue would need to be broadly construed.

44. The CRUS does not define the terms “willful” or “malicious”. I first find that the plain language of the statute does not require a willful and malicious failure to warn or guard against a dangerous condition. The legislature used the disjunctive “or” to create two avenues for imposing liability on a landowner: either “willfully” failing t