                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                 June 28, 2016
                                     PUBLISH                 Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 JAMES NELSON, and ELIZABETH
 VARNEY,

             Plaintiffs-Appellees,
 v.                                                    No. 14-1322
 UNITED STATES OF AMERICA,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                 (D.C. NO. 1:11-CV-02953-WYD-CBS)


Joshua M. Salzman, Attorney, Appellate Staff, Civil Division (Joyce R. Branda,
Assistant Attorney General, John F. Walsh, United States Attorney for the District
of Colorado, Beth S. Brinkman, Deputy Assistant Attorney General, and Mark B.
Stern, Attorney, Appellate Staff, Civil Division, with him on the briefs), United
States Department of Justice, Washington, D.C., for Appellant.

Robert Fishman, Ridley, McGreevy & Winocur (David P. Hersh, Diane Vaksdal
Smith, and Steven G. Greenlee, Burg Simpson Eldredge Hersh & Jardine, P.C.,
Englewood, Colorado, with him on the brief), Denver, Colorado, for Appellees.


Before TYMKOVICH, Chief Judge, GORSUCH, and McHUGH, Circuit
Judges.


TYMKOVICH, Chief Judge.
      James Nelson was seriously injured bike riding when he encountered a

sinkhole on a bike path on United States Air Force Academy land. He sued under

the Federal Tort Claims Act for damages and was awarded over $7 million. The

government contends that it is immune from liability under the Colorado

Recreational Use Act, Colo. Rev. Stat. § 33-41-101 et seq., which limits the

liability of landowners who allow the use of their property for recreational

purposes. We agree that under the Recreational Use Act Mr. Nelson was a

permissive user of the bike path and the Academy is therefore not liable for its

negligent maintenance of the path.

      Accordingly, we REVERSE the district court’s judgment and REMAND for

further proceedings.

                                I. Background

      Mr. Nelson was a regular user of a bicycle path located on property that is

part of the United States Air Force Academy. While riding in the fall of 2008, he

struck a large sinkhole and severely injured himself.

      Two signs existed near the path’s entrance. The first sign, not especially

conspicuous, was erected by the Academy and informed visitors that entry was

illegal without permission. The second sign—located closer to the path’s

entrance and easier for bikers to read—stated, “Bicycle Path, No Motorized

Vehicles.” The Academy did not erect the “Bicycle Path” sign, nor do they know

who did or when. But the sign was displayed for at least as long as Mr. Nelson

                                        -2-
had been using the path. Prior to the accident, in 2007, the Colorado Department

of Transportation emailed the Academy and offered to remove the sign, which

was near the right-of-way on Interstate 25 as the highway crosses Academy

property. The Academy, however, never responded to this email and the sign

remained in place until Mr. Nelson’s accident the following year. After the

accident, the Academy closed the path.

      Mr. Nelson and his wife sued the United States under the FTCA for his

injuries and his wife’s loss of consortium. After a bench trial the district court

found the United States liable and awarded the plaintiffs damages. The district

court made several findings of fact and conclusions of law relevant to this appeal.

      First, the district court found the Academy knew the path was used for

recreational purposes such as jogging and biking. In addition, the Academy

considered bike path users trespassers on Academy land. Nonetheless, the

Academy never confronted recreational users or prevented them from using the

path. The district court also found that the Academy did not intend for the path to

be a recreational trail open to the public.

      Based on these findings, the district court held the Academy could not take

advantage of the limitations on liability under the Recreational Use Act because

the Academy had not intended to open the path for public recreational use. And

since the Academy knew bikers were using the path and was aware of the




                                          -3-
sinkhole, it breached its duty of care by failing to repair the sinkhole or warn

users of the risk.

                                   II. Analysis

      In FTCA cases, we review the district court’s determination of state tort

law de novo. Ayala v. United States, 49 F.3d 607, 611 (10th Cir. 1995). The

Colorado Supreme Court has not yet addressed the central issue in this case.

When faced with unsettled issues of state law, federal courts should predict how

the state’s highest court would interpret the issue. See Cornhusker Cas. Co. v.

Skaj, 786 F.3d 842, 852 (10th Cir. 2015). The government contends it is entitled

to the protections of the Colorado Recreational Use Act. As we explain, that law

protects landowners, including the United States government, who knowingly

permit recreational uses on their property.

      A. Colorado Law

      Colorado, like nearly every state, has adopted a recreational use statute

protecting landowners who open their land for public recreational use from

liability for injuries. Under the Act, “the owner of land who either directly or

indirectly invites or permits, without charge, any person to use such property for

recreational purposes” will not be responsible for “any injury to person or

property . . . caused by an act or omission” of the landowner. Colo. Rev. Stat.

§ 33-41-103. But liability will not be limited for a landowner’s “willful and



                                          -4-
malicious failure to guard or warn against a known dangerous condition . . . likely

to cause harm.” Id. § 33-41-104. 1

      If a landowner is not entitled to protection under the Recreational Use Act,

his liability depends on the status of users of his property. Under the Colorado

Premises Liability Act, landowners can be liable to users they invite on their land

for personal or commercial purposes. Under this Act, a landowner can be liable

to an “invitee,” who is a person that “enters or remains on the land of another to

transact business in which the parties are mutually interested or who enters or

remains on such land in response to the landowner’s express or implied

representation that the public is requested, expected, or intended to enter or

      1
          In more detail, the Colorado Recreational Use Statute provides:

              (1) Subject to the provision of section 33-41-105, an
              owner of land who either directly or indirectly invites or
              permits, without charge, any person to use such property
              for recreational purposes does not thereby:

              (a) Extend any assurance that the premises are safe for
              any purpose;

              (b) Confer upon such person the legal status of an
              invitee or licensee to whom a duty of care is owed;

              (c) Assume responsibility or incur liability for any
              injury to person or property or for the death of any
              person caused by an act or omission of such person.

       The statute further provides, however, that “[n]othing in this article 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 . . . .” Colo. Rev. Stat. § 33-41-104(a).

                                         -5-
remain.” Colo. Rev. Stat. § 13-21-115. Landowners owe invitees the highest

duty of care.

      Other types of users are entitled to lesser protections. For example, a

“licensee” is a person “who enters or remains on the land of another for the

licensee’s own convenience or to advance his own interests, pursuant to the

landowner’s permission or consent. ‘Licensee’ includes a social guest.” Id.

Licensees are owed a less demanding duty of care—they can recover only for a

landowner’s “unreasonable failure to exercise reasonable care with respect to

dangers created by the landowner of which the landowner actually knew,” or his

“unreasonable failure to warn of dangers not created by the landowner which are

not ordinarily present on property of the type involved and of which the

landowner actually knew.” Id.

      Finally, a “trespasser” is “a person who enters or remains on the land of

another without the landowner’s consent.” Id. “A trespasser may recover only

for damages willfully or deliberately caused by the landowner.” Id. 2

      2
          The Premises Liability Act states, in relevant part:

                (3)(a) A trespasser may recover only for damages
                willfully or deliberately caused by the landowner.

                (b) A licensee may recover only for damages caused:
                (I) By the landowner’s unreasonable failure to exercise
                reasonable care with respect to dangers created by the
                landowner of which the landowner actually knew; or
                (II) By the landowner’s unreasonable failure to warn of
                                                                          (continued...)

                                           -6-
      B. Application

      The Academy contends it is shielded from Mr. Nelson’s tort claims under

the Recreational Use Act because it knew the bike path was being used by the

public and took no steps to block such usage. For purposes of the Act, the

Academy therefore “indirectly permitted” Mr. Nelson’s use for recreational

purposes. The district court disagreed, finding the Act did not apply because the

Academy did not intend trespassers to use the path. The court instead found that

Mr. Nelson was an invitee under the Colorado Premises Liability Act and thus the

Academy owed him a duty to reasonably maintain the bike path. And because the

Academy did not fulfill this duty, Mr. Nelson could recover for damages caused

by the dangerous condition.

      We agree with the Academy that Mr. Nelson was a permissive user under

the Recreational Use Act. First, the Act extends protection to any person the

landowner “directly or indirectly invites or permits” to use property for


      2
          (...continued)
                dangers not created by the landowner which are not
                ordinarily present on property of the type involved and
                of which the landowner actually knew.

               (c)(I) Except as otherwise provided in subparagraph (II)
               of this paragraph (c), an invitee may recover for
               damages caused by the landowner’s unreasonable failure
               to exercise reasonable care to protect against dangers of
               which he actually knew or should have known.

      Colo. Rev. Stat. 13-21-115(3).

                                           -7-
recreational purposes. Under Colorado law, “permission” is defined as “conduct

that justified others in believing that the possessor of property is willing to have

them enter if they want to do so.” Corder v. Folds, 292 P.3d 1177, 1180 (Colo.

App. 2012) (quoting Black’s Law Dictionary (9th ed. 2009)). The parties do not

contend the Academy directly permitted use of the path—in fact, the Academy

considered users of the bike path to be trespassers on its property.

      But the district court’s fact findings confirm that Mr. Nelson was indirectly

permitted to use the bike path. First of all, Academy personnel knew for many

years that the public used the path for recreational purposes. They also knew the

“Bicycle Path” sign was placed near the entrance to Academy boundaries and

gave the impression the path was open for general public use. And prior to the

accident the Colorado Department of Transportation offered to remove the sign,

an offer the Academy ignored. Finally, the Academy never prevented usage of

the path or took steps to close it off to the public. Together, this conduct can only

be seen as indirectly permitting bikers such as Mr. Nelson to use the path for

recreational purposes.

      The district court disagreed with this interpretation, finding that the

Academy’s subjective intent—that users were “trespassers”—negated the Act’s

protections. The Academy contended the Act requires an objective standard,

otherwise the statutory protection for indirect permission would be read out of the

Act. A number of courts have decided cases similar to this one, and reached

                                          -8-
different conclusions. For example, in interpreting Kentucky’s recreational use

statute, which was identical to Colorado’s, the Kentucky Supreme Court

determined that to avoid giving blanket immunity to landowners who “do[]

nothing,” it should read the statute narrowly and impute an intent requirement.

Coursey v. Westvaco Corp., 790 S.W.2d 229 (Ky. 1990). The court held that “a

landowner must show he knew and condoned the public making recreational use

of his property, and by the landowner’s words, actions or lack of action it must be

able to be reasonably inferred the landowner intended to permit such use.” Id. at

232.

       Similarly, in Craig v. Sepulvado, 709 So. 2d 229 (La. Ct. App. 3 Cir.

1998), the Court of Appeal of Louisiana determined that landowners who do not

show an intent to allow the public to enter could not be shielded by a recreational

use statute. In that case, a minor had been accidentally shot while hunting on

defendant’s land. The court determined that because defendant had evidenced a

willingness to allow only her own grandchildren on the premises for recreational

purposes, she could not take advantage of the recreational use statute.

       In contrast, in Ali v. City of Boston, 804 N.E.2d 927, 930 (Mass. 2004), the

Supreme Judicial Court of Massachusetts held that Massachusetts’s recreational

use statute, which protects landowners who “permit[] the public to use such land

for recreational . . . purposes without imposing a charge,” did not require a

showing of subjective intent. Id. at 930. The plaintiff had been riding his bike

                                        -9-
through a public park when he collided with a park gate and suffered injuries. He

argued that his use of the bicycle was non-recreational, and thus the city could not

use the recreational use statute as a shield to liability. The court disagreed, and

affirmed summary judgment for the city. Because riding a bicycle was an

“objectively recreational activity,” and the city did not charge for entry to the

park, the law shielded it from liability. Id. at 931. In addition, it found that

conditioning liability under a recreational use statute on subjective intent “would

only invite mischief and deceit.” Id. at 932.

      Along these lines, in Stanley v. Tilcon Maine, Inc., 541 A.2d 951, 953 (Me.

1988), the Supreme Judicial Court of Maine, in interpreting its own recreational

use statute, found that the intent of the owner is not relevant to a determination of

the statute’s applicability. The case concerned injuries to a child while

tobogganing in defendants’ sandpit. The court found that, although the

landowners had not manifested any affirmative intent to allow such activities, the

objective standard in the law provided them with protection against liability.

      We agree with those courts finding a subjective intent requirement is not

required under recreational use statutes. Instead, it is enough that the Academy’s

purposeful actions implicitly allowed or acquiesced in Mr. Nelson’s use of the

path. 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. Furthermore, requiring intent for both direct and

                                          -10-
indirect permission would read the term “indirect” out of the statute. Imputing a

subjective intent requirement could also lead to varying results, based only on the

supposed subjective intention of landowners.

       In sum, landowners are entitled to protection by knowingly permitting

recreational use of their property. Under a plain reading of the statute, the

Academy “indirectly permitted” Mr. Nelson’s use of the path through its conduct.

It knew of the public’s use of the path and declined the opportunity to end that

use.

       C. Willful or Malicious Conduct

       Because we find the Academy is entitled to protection under the

Recreational Use Act, we reverse the district court’s judgment that Mr. Nelson

can recover as a licensee or invitee. The Recreational Use Act does not, however,

completely eliminate liability. Liability is still possible for “willful or malicious”

failure to warn.

       The Academy urges us to resolve this question, arguing that several

findings of fact by the district court show that no willful or malicious conduct

occurred. For example, the district court found that the only government

employee who knew about the sinkhole failed to report it, not out of malice, but

because he believed the path was not used and, thus, that no one was in danger.

The government claims this conduct alone could not be willful or malicious. Mr.

Nelson counters that the district court did not adjudicate this issue, and that it

                                         -11-
should be the first to do so. We agree with Mr. Nelson that the district court

should decide this issue in the first instance.

                                  III. Conclusion

      We REVERSE the district court’s judgment and REMAND for further

proceedings consistent with this opinion.




                                          -12-
