20 F. Supp. 3d 1108
D. Colo.2014Background
- FTCA premises liability action arising on USAFA property in Colorado Springs, Colorado.
- Injuries occurred on September 3, 2008 when Nelson fell into a sinkhole on an asphalt path.
- Path was not identified on USAFA Real Property Record and was considered unofficial; USAFA maintained no active control as a public trail.
- CRUS and easement issues are at stake; USAFA signs (Bicycle Path, No Motorized Vehicles) were unauthorized but to public viewed as inviting use.
- Plaintiffs argue Nelson was an invitee or licensee and that USAFA failed to warn or repair the hazard; defendant argues discretionary-function and CRUS immunities apply.
- Court held FTCA jurisdiction proper, discretionary-function exception not applicable, CRUS not applicable, and USAFA liable under CPLA to Nelson and Varney.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FTCA discretionary-function exception applicable? | Discretionary action failed to warn/guard against sinkhole. | Decision not to warn or repair was discretionary under policy analysis. | Discretionary-function exception does not apply. |
| CRUS applicability to USAFA’s path use? | Path usage by public implied permission via signs. | No direct/indirect invitation; CRUS inapplicable. | CRUS does not apply. |
| Status of Nelson under CPLA (invitee/licensee/licensee-implied)? | Signs created implied invitation/permit to use path. | No affirmative invitation; implied consent debated. | Nelson is an invitee or licensee; USAFA liable. |
| Comparative fault and Nelson’s own negligence? | Nelson not at fault; no headlight necessity shown. | Nelson contributorily negligent; headlight issues debated. | Nelson not at fault; USAFA not liable for Nelson’s fault. |
Key Cases Cited
- Berko-vitz v. United States, 486 U.S. 531 (U.S. 1988) (two-step test for discretionary function exception)
- Garcia v. United States Air Force, 533 F.3d 1170 (10th Cir. 2008) (discretionary function exception framework applied)
- Varig Airlines v. United States, 467 U.S. 797 (U.S. 1984) (policy-based protection scope of discretionary function)
- Duke v. Department of Agriculture, 131 F.3d 1407 (10th Cir. 1997) (policy analysis vs. ordinary negligence in discretionary context)
- Zumwalt v. United States, 928 F.2d 951 (10th Cir. 1991) (failure to warn not always policy-based under discretionary function)