Amendment To Statute That Shuttered Private 14ers To Provide New Protection To Landowners (But It Isn't Foolproof)

• Published date: 06 March 2024
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Personal Injury, Real Estate
• Law Firm: Davis Graham & Stubbs
• Author: Sarah Kellner and Chelsea Reinhard

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...