Nelson v. United States , 915 F.3d 1243 ( 2019 )


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  •                                                                                 FILED
    United States Court of Appeals
    PUBLISH                               Tenth Circuit
    UNITED STATES COURT OF APPEALS                      February 12, 2019
    Elisabeth A. Shumaker
    FOR THE TENTH CIRCUIT                           Clerk of Court
    _________________________________
    JAMES NELSON; ELIZABETH
    VARNEY,
    Plaintiffs - Appellees,                              No. 17-1388
    v.
    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, Appellate Staff Attorney, Civil Division (Chad A. Readler, Acting
    Assistant Attorney General; Bob Troyer, United States Attorney; and Mark B. Stern,
    Appellate Staff Attorney, Civil Division, with him on the briefs), United States
    Department of Justice, Washington, D.C., for Defendant – Appellant.
    Robert T. Fishman, Ridley, McGreevy & Winocur, PC, Denver, Colorado (David P.
    Hersh, Steven G. Greenlee, Burg Simpson Eldredge Hersh & Jardine, PC., Englewood,
    Colorado, with him on the brief), for Plaintiffs – Appellees.
    _________________________________
    Before MATHESON, PHILLIPS, and McHUGH, Circuit Judges.
    _________________________________
    McHUGH, Circuit Judge.
    _________________________________
    In 2008, Mr. James Nelson was seriously injured while riding his bicycle on
    United States Air Force Academy land. He and his wife, Elizabeth Varney,1 sued the
    Academy under the Federal Tort Claims Act (“FTCA”), seeking damages. The
    district court ruled in their favor and awarded them approximately $7 million in
    damages. In a previous appeal, we reversed that decision, holding that the Colorado
    Recreational Use Statute (the “CRUS”) shielded the Academy from liability. But we
    remanded on the issue of whether an exception to the statute’s liability shield
    applied. On remand, the district court held that an exception did apply and reinstated
    its prior judgment. The Academy then brought this appeal.
    Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
    I.     BACKGROUND
    On September 3, 2008, Mr. Nelson was involved in a bicycle accident while
    riding on an asphalt path on Academy land. Nelson v. United States (“Nelson III”),
    
    256 F. Supp. 3d 1136
    , 1141 (D. Colo. 2017). He struck a sinkhole, “lost control of
    his bicycle,” and “was flung onto the asphalt path,” suffering severe injuries. 
    Id. The asphalt
    path ran parallel to Interstate 25 and was within an easement held by the
    Colorado Department of Transportation (“CDOT”), though CDOT was not
    responsible for maintaining the path. See 
    id. at 1141–42.
    At both entrances to the
    path were two signs—one that read, “Bicycle Path, No Motorized Vehicles,” and
    another, less visible, that prohibited entry onto Academy property. See 
    id. at 1145;
    1
    For ease of reference, we refer to Mr. Nelson and Ms. Varney collectively as
    the Nelsons.
    2
    Nelson v. United States (“Nelson II”), 
    827 F.3d 927
    , 929 (10th Cir. 2016). The
    Academy did not post the bicycle-path signs, nor did it otherwise designate the path
    as a recreational trail. Nelson 
    III, 256 F. Supp. 3d at 1144
    –45. In fact, the Academy
    considered public users to be trespassers. 
    Id. Yet, despite
    knowing the public used the
    path, the Academy did not take any affirmative steps to preclude the public or
    remove the bicycle-path signs prior to Mr. Nelson’s accident. See 
    id. The sinkhole
    that Mr. Nelson encountered “encompassed the entire width of
    the path” and was created by “wash-out/erosion problems in the area.” 
    Id. at 1143.
    Despite its size, the sinkhole was difficult to see by users of the path. See 
    id. The sinkhole
    was first discovered on August 20, 2008, by Dr. Brian Mihlbachler, a
    biologist with the Fish and Wildlife Service. 
    Id. at 1145–46.
    Dr. Mihlbachler “had
    [the] responsibility for managing the natural resources on the Academy’s” land,
    particularly monitoring “serious erosion and sedimentation issues” and “reporting to
    the appropriate party if issues were identified.” 
    Id. at 1146.
    Dr. Mihlbachler was an
    employee of the Academy and “had responsibilities related to Academy safety and
    security and reporting safety concerns.” 
    Id. at 1147.
    He found the sinkhole while
    monitoring erosion “along [the Academy’s] boundary.” 
    Id. at 1146.
    Dr. Mihlbachler
    photographed and documented the sinkhole but “did not report the sinkhole or show
    the photographs to anyone.” Consequently, he was the only Academy employee who
    was actually aware of the sinkhole before Mr. Nelson’s accident. 
    Id. at 1146–47.
    Despite knowing the path was being used at least occasionally “for recreational
    3
    purposes,” 
    id. at 1144,
    1161, Dr. Mihlbachler did not take any steps to warn of, fill
    in, or cordon off the sinkhole prior to the accident, 
    id. at 1147–49.
    Mr. Nelson and his wife filed suit against the Academy in district court,
    seeking damages under the FTCA. 
    Id. at 1140.
    The district court found that Mr.
    Nelson was an invitee or licensee and that the Academy was liable for his injuries. 
    Id. The district
    court awarded him approximately $7 million for his injuries and losses
    and awarded Ms. Varney $401,425 for loss of consortium. 
    Id. The Academy
    had
    argued the CRUS shielded it from liability, but the district court held the CRUS was
    inapplicable. See 
    id. The Academy
    appealed, and we reversed the district court,
    concluding the CRUS did apply. Nelson 
    II, 827 F.3d at 929
    . But we did not reach the
    question of whether an exception to the CRUS applied. Instead, we remanded to the
    district court to make that determination in the first instance. 
    Id. at 933.
    On remand,
    the district court held that “the Academy and Dr. Mihlbachler” were not shielded
    from liability under the CRUS because, per an exception to the CRUS relevant here
    (“the CRUS exception”), they “willfully ignored the dangerous condition on the path
    and chose not to take steps to warn or guard users like Mr. Nelson against that
    danger.” Nelson 
    III, 256 F. Supp. 3d at 1165
    ; see also Colo. Rev. Stat § 33-41-
    104(1). The district court also held alternatively that even if the Academy’s and Dr.
    Mihlbachler’s actions were not considered collectively, “Dr. Mihlbachler acted
    willfully” and thus the Academy was liable. See 
    id. The Academy
    brought this
    appeal.
    4
    We agree with the district court that Dr. Mihlbachler’s actions and knowledge
    alone are sufficient to support a finding of liability against the Academy.2
    II.   DISCUSSION
    In reviewing the district court’s conclusion that Mr. Nelson’s claim falls
    within the CRUS exception, we first provide an overview of that exception under
    Colorado law. Then, we review the district court’s decisions in some detail to assess
    whether the court’s conclusion is correct according to Colorado law, and whether it is
    supported by the district court’s factual findings. Ultimately, we determine that
    judgment in favor of the Nelsons is proper, and we affirm the decision of the district
    court.
    A. The CRUS and the CRUS Exception
    The Colorado General Assembly adopted the CRUS “to encourage owners of
    land to make land and water areas available for recreational purposes.” Colo. Rev.
    Stat. § 33-41-101. It attempts to accomplish this goal “by limiting [landowner]
    liability toward persons entering thereon for [recreational] purposes.” 
    Id. Accordingly, the
    CRUS provides a near complete liability shield to landowners “who
    directly or indirectly invite[] or permit[], without charge, any person to use [their]
    property for recreational purposes.” 
    Id. § 33-41-103(1).
    But this broad liability shield
    is only nearly complete. Relevant here, the CRUS exception states that “[n]othing in
    2
    Because we believe Dr. Mihlbachler’s conduct and knowledge on their own
    provide a basis for affirming the district court, we do not reach the question whether
    the Academy is liable via the collective imputation of Dr. Mihlbachler’s and other
    Academy employees’ knowledge.
    5
    [the CRUS] 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.” 
    Id. § 33-41-104(1).
    The core legal issue in this case is a question of state law—the proper
    interpretation of the CRUS exception. “In FTCA cases, we review the district court’s
    determination of state tort law de novo.” Nelson 
    II, 827 F.3d at 930
    . “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). When interpreting a statute, Colorado courts “first 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). They also
    examine “the statute as a whole and strive to give ‘consistent, harmonious, and
    sensible effect to all parts.’” Reno v. Marks, 
    349 P.3d 248
    , 253 (Colo. 2015) (quoting
    Denver Post Corp. v. Ritter, 
    255 P.3d 1083
    , 1088–89 (Colo. 2011)). If a statute
    grants immunity in derogation of the common law, Colorado courts construe the
    grant of immunity narrowly and exceptions to that grant broadly. See Burnett v. State
    Dep't of Nat. Res., 
    346 P.3d 1005
    , 1008 (Colo. 2015). But throughout the statutory
    construction inquiry, the “touchstone remains the intent of the legislature.” St. Vrain
    Valley Sch. Dist. RE-1J v. A.R.L. ex rel. Loveland, 
    325 P.3d 1014
    , 1019 (Colo. 2014).
    We agree with the district court that “Colorado appellate courts,” including the
    Colorado Supreme Court, “have not specifically construed” the CRUS exception. See
    6
    Nelson 
    III, 256 F. Supp. 3d at 1149
    . Thus, we have the responsibility to predict how
    the Colorado Supreme Court would interpret it in the first instance. See 
    Johnson, 305 F.3d at 1118
    . Before considering the text of the statute, however, we must determine
    whether the CRUS derogates the common law such that we are required to construe
    the CRUS’s liability shield narrowly and the CRUS exception broadly. See 
    Burnett, 346 P.3d at 1008
    . The Academy argues this doctrine is inapplicable here because the
    CRUS “does not displace the common law, but rather the Colorado Premises
    Liability Act [(“CPLA”)].” Appellant’s Br. at 23–24. The CPLA sets out the
    circumstances under which landowners may be liable to entrants on their property,
    see Colo. Rev. Stat. § 13-21-115(2)–(5), and aspects of it represent “substantial
    departure[s] from the common law,” see Larrieu v. Best Buy Stores, L.P., 
    303 P.3d 558
    , 565 & n.9 (Colo. 2013); Colo. Rev. Stat. § 13-21-115(1.5)(e) (explaining that
    the purpose of the CPLA is, among other things, “to protect landowners from liability
    in some circumstances when they were not protected at common law”). The Academy
    suggests that because the CPLA displaced the common law, any further changes to
    landowner liability displace only the CPLA. This, is at least in part because the
    CPLA “was designed to enhance protections for landowners.” See Appellant’s Br. at
    23–24 (citing Colo. Rev. Stat. § 13-21-115(1.5)(e)). We are not convinced.
    The Academy’s argument suffers from at least two flaws. First, it assumes
    without authority that multiple statutes cannot, either working in tandem or
    separately, derogate the same general area of common law. Second, it overlooks that
    the CPLA and the CRUS have consonant purposes. The CRUS was passed to
    7
    “encourage owners of land to make land and water areas available for recreational
    purposes by limiting their liability toward persons entering thereon for such
    purposes.” Colo. Rev. Stat. § 13-41-101. And, as the Academy notes, the purpose of
    the CPLA is “to create a legal climate which will promote private property rights and
    commercial enterprise and will foster the availability and affordability of insurance”
    by “protect[ing] landowners from liability in some circumstances when they were not
    protected at common law.” 
    Id. § 13-21-115(1.5)(d)–(e).
    In short, the CRUS did not
    displace the CPLA but furthered its purpose. So the CRUS, either on its own or
    working in tandem with the CPLA, derogates the common law. Thus, its liability
    shield must be construed narrowly and the CRUS exception must be construed
    broadly.
    We now move to the text of the statute. The parties do not dispute most of the
    district court’s construction of the CRUS exception—neither party claims that the
    term “malicious” applies here nor that we are considering a dangerous “use,
    structure, or activity.” See Colo. Rev. Stat. § 33-41-104(1)(a). The CRUS exception’s
    remaining relevant text indicates that a landowner is liable for injuries on its land that
    result from a “willful . . . failure to guard or warn against a known dangerous
    condition . . . likely to cause harm.” See 
    id. The Academy
    also has not disputed the
    district court’s findings that the sinkhole was a dangerous condition likely to cause
    harm, see Nelson 
    III, 256 F. Supp. 3d at 1150
    –52, that Dr. Mihlbachler knew the path
    was being used for recreational purposes, 
    id. at 1144,
    1161, that Dr. Mihlbachler
    failed to warn or guard against the dangers inherent in the sinkhole on a known bike
    8
    path, 
    id. at 1147–49,
    1162–65, or that Dr. Mihlbachler knew about the sinkhole prior
    to Mr. Nelson’s accident, 
    id. at 1146–47;
    see also Appellant’s Reply Br. at 13
    (explaining that the Academy is not “challeng[ing] the district court’s findings” of
    fact).
    This leaves us with two disputes: whether Dr. Mihlbachler knew the sinkhole
    was a “dangerous condition likely to cause harm” and whether his failure to warn or
    guard against that dangerous condition was “willful.” Before addressing those issues,
    we define the terms “known” and willful” under Colorado law. We then proceed to
    apply that law to the facts found by the district court.
    1. Knowledge Under Colorado Law
    For a landowner to be found liable despite the CRUS’s liability shield, it (or its
    agent) must willfully fail to warn or guard against a “known dangerous condition . . .
    likely to cause harm.” See Colo. Rev. Stat. § 33-41-104(1)(a) (emphasis added). The
    Colorado Supreme Court recently explained that “[s]tatutory interpretation in
    Colorado has consistently construed the words ‘know’ or ‘knowingly’ without [a]
    qualifying ‘should have known’ to require actual knowledge.” Przekurat ex rel.
    Przekurat v. Torres, 
    428 P.3d 512
    , 516, reh’g denied (2018).3 The court defined
    3
    The Colorado Supreme Court issued Przekurat ex rel. Przekurat v. Torres,
    
    428 P.3d 512
    , 516, reh’g denied (2018), after the briefing in this court, but before
    oral argument. Neither party alerted us to the decision at oral argument or by a letter
    under Federal Rule of Appellate Procedure 28(j).
    9
    actual knowledge as “one’s awareness of objective facts.”4 
    Id. at 517.
    In Przekurat,
    the court was interpreting an exception to the Colorado Dram Shop Act’s liability
    shield for “social hosts.” 
    Id. at 514–15.
    That exception reinstates potential liability
    for a social host who “knowingly provide[s] the person under the age of twenty-one a
    place to consume an alcoholic beverage.” 
    Id. at 515
    (quoting Colo. Rev. Stat.
    § 12-47-801(4)(a) (2017)). The court concluded that the “knowing” “mens rea”
    applied to “both the provision of the space for alcohol consumption and the age of
    the specific underage drinker.” 
    Id. at 515
    .
    Because we believe Przekurat is indicative of how the Colorado Supreme
    Court would resolve this case, we apply it analogously. As in Przekurat, the
    knowledge element of the CRUS exception is not qualified by “reason to know” and
    thus requires actual knowledge. Further, that knowledge element applies to both the
    existence of the dangerous condition and the likelihood that it will cause harm.
    Accordingly, the Academy may be liable only if Dr. Mihlbachler actually knew of
    the existence of the sinkhole that caused Mr. Nelson’s injuries and that the sinkhole
    was likely to cause harm.
    2. Willfulness Under Colorado Law
    We next consider the proper interpretation of “willful” under Colorado law.
    The district court defined willful conduct as conduct taken “voluntarily, purposefully
    4
    The Colorado Supreme Court has defined “objective facts” as those facts
    “that can be proven as false.” See, e.g., In re Green, 
    11 P.3d 1078
    , 1084 (Colo.
    2000).
    10
    and with a conscious disregard for the consequences of the [conduct].” Nelson 
    III, 256 F. Supp. 3d at 1159
    (quoting Hohn v. Morrison, 
    870 P.2d 513
    , 517 (Colo. App.
    1993)). In support, the district court cited Pettingell v. Moede, 
    271 P.2d 1038
    , 1042
    (Colo. 1954) (defining “[w]illful action” as “voluntary; by choice; intentional;
    purposeful”) and 
    Hohn, 870 P.2d at 517
    (relying on Black’s Law Dictionary to
    conclude that willful conduct means conduct done “voluntarily, purposefully, and
    with a conscious disregard for the consequences of his or her conduct” and with “no
    justifiable excuse”) (emphasis omitted)) See Nelson 
    III, 256 F. Supp. 3d at 1159
    . But
    “willfulness does not,” the district court concluded, “require that a government
    employee be consciously aware that his acts or omissions create danger or risk to the
    safety of others.” 
    Id. at 1159–60.
    The Academy takes issue with the district court’s second statement that a
    government employee need not be conscious of the consequences of his actions,
    claiming that “conduct is ‘willful’ only if the landowner or its agent consciously
    exposed others to a substantial risk of injury.” Appellant’s Br. at 14. If “willful”
    includes a risk-of-harm component here, however, it introduces surplusage because
    the statute already explicitly includes such language. Under Colorado law, “[w]e
    must give effect to the meaning, as well as every word[,] of a statute if possible.”
    Bennett Bear Creek Farm Water & Sanitation Dist. v. City & Cty. of Denver ex rel.
    Bd. of Water Comm’rs, 
    928 P.2d 1254
    , 1262 (Colo. 1996); see also In re Marriage of
    Rooks, 
    429 P.3d 579
    , 599 (Colo. 2018) (declining to interpret one provision of a
    statute in such a way as would render another provision of the statute “mere
    11
    surplusage”) (quoting Colo. Med. Bd. v. Office of Admin. Courts, 
    333 P.3d 70
    , 74
    (Colo. 2014); People v. Flenniken, 
    749 P.2d 395
    , 399 (Colo. 1988) (same); Antonin
    Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174
    (2012) (explaining that no word or provision “should needlessly be given an
    interpretation that causes it to duplicate another provision or to have no
    consequence”). The Academy cites three Colorado Supreme Court cases in support of
    its position that “willful” conduct requires that the landowner consciously expose
    others to a substantial risk of injury, but each is readily distinguishable. See
    Appellant’s Br. at 17–18 (discussing Crum v. Groce, 
    556 P.2d 1223
    , 1224 (Colo.
    1976) (interpreting a statute that does not include risk-of-harm language); United
    Blood Servs., a Div. of Blood Sys., Inc. v. Quintana, 
    827 P.2d 509
    , 523 n.10 (Colo.
    1992) (same); People v. Marcy, 
    628 P.2d 69
    , 78 (Colo. 1981) (interpreting a criminal
    statute that provides its own definition of “willful”)).
    In Przekurat, the Colorado Supreme Court provides more analogous guidance.
    There, contrasting “knowingly” with “willfully,” the court defined “willfully” as
    “one’s subjective intent to act on—or in spite of—[one’s] awareness” of objective
    
    facts. 428 P.3d at 517
    . This more recent definition of “willful” under Colorado law
    supports the definition provided in Hohn—“voluntarily, purposefully, and with a
    conscious disregard for the consequences of his or her conduct” and with “no
    justifiable 
    excuse.” 870 P.2d at 517
    –18 (emphasis omitted). Thus, the Academy is
    liable for Mr. Nelson’s injuries if Dr. Mihlbachler purposefully or voluntarily failed
    to warn or guard with conscious disregard for the consequences of that failure. That
    12
    is, if he had the subjective intent to fail to act despite actually knowing that there was
    a sinkhole and it was likely to cause harm.
    Having defined the terms used in the CRUS exception, we now consider
    whether the district court’s conclusion that the Nelsons’ claim falls within that
    exception is correct and supported by the district court’s findings.
    B. The District Court’s Findings and Conclusions
    The factual findings relevant to this analysis can be found in the district
    court’s initial decision granting relief on the grounds the CRUS did not apply, Nelson
    v. United States (“Nelson I”), 
    20 F. Supp. 3d 1108
    , 1114 (D. Colo. 2014), rev’d and
    remanded, Nelson II, 
    827 F.3d 927
    , and in its decision after remand holding the claim
    falls within the CRUS exception, Nelson 
    III, 256 F. Supp. 3d at 1136
    . After
    considering evidence described in Nelson I and Nelson III, the district court in Nelson
    III found facts relevant to the two disputes in this appeal. It found that: (1) Dr.
    Mihlbachler knew the sinkhole was a dangerous condition and (2) he acted willfully
    in failing to guard or warn against it.
    The Academy argues that the district court’s findings of fact in Nelson I and in
    Nelson III cannot be squared with its ultimate conclusion in Nelson III that Dr.
    Mihlbachler willfully failed to warn of or guard against the known dangerous
    condition. In particular, the Academy argues, “The district court’s initial opinion
    contained no suggestion that the Academy’s conduct was anything more than
    negligent[] and contained no hint that the conduct might be malicious or willful.” 
    Id. at 2,
    9. And the Academy contends the district court’s “finding that the ‘thought never
    13
    occurred’ to Dr. Mihlbachler that the damage to the path would create a safety
    hazard” precluded it from holding in favor of the Nelsons. Appellant’s Br. at 31.
    These arguments sound like arguments about facts, but as noted above, the Academy
    does not dispute any of the district court’s factual findings. Accordingly, the
    Academy’s arguments about contrary evidence are arguments that the district court
    made legal errors. The district court’s knowledge finding would be legal error if the
    court relied on constructive rather than actual knowledge.5 Similarly, its willfulness
    finding would be legal error if the court relied on an impermissible definition of
    willfulness. In both instances, we conclude the district court did not commit legal
    error. To illustrate why, we first examine the district court’s opinion in Nelson I. We
    then review the opinion in Nelson III, focusing on the district court’s findings of fact
    and conclusions of law related to Dr. Mihlbachler.
    5
    Conceivably, the district court could also commit legal error if its conclusion
    is not supported by the findings of fact. See United States v. Vega, 
    141 F.3d 1186
    (Table), 
    1998 WL 110433
    , at *2 (10th Cir. 1998) (describing such a challenge as
    raising a mixed question that we would review, in this context, de novo); State
    Distribs., Inc. v. Glenmore Distilleries Co., 
    738 F.2d 405
    , 412 & n.2 (10th Cir. 1984)
    (explaining “it is fundamental that a judgment cannot be sustained on appeal unless
    the conclusion upon which it rests has support in one or more findings of fact” and
    applying “the more stringent standard of review accorded conclusions of law”).
    Because our conclusion that the findings of fact support the district court’s
    conclusion that Dr. Mihlbachler, and thus the Academy, had actual knowledge of the
    dangerous condition, we need not separately consider this interpretation of the
    Academy’s argument.
    14
    1.    Nelson I
    Appellants argue that: (1) Nelson I impermissibly conflicts with Nelson III and
    (2) Nelson III incorporates findings in Nelson I that are incompatible with the district
    court’s conclusion in Nelson III. We explain why the first argument fails and then
    explain the factual findings in Nelson I before considering Nelson III.
    First, while it is true Nelson I did not find willful or malicious conduct, that
    question was not relevant to whether the Academy had directly or indirectly opened
    the path for recreational use.6 On remand, the willfulness of the Academy’s conduct
    became the central issue, and the district court’s focus shifted accordingly. The court
    made new findings of fact sufficient to support its conclusion that the CRUS
    exception is implicated. The district court was permitted to do this. See Hicks v.
    Gates Rubber Co., 
    928 F.2d 966
    , 971 (10th Cir. 1991) (holding that when proceeding
    on a general remand, the district court is free to decide any issues not foreclosed by
    the appellate mandate); Otero v. Mesa Cty. Sch. Dist. No. 51, 
    628 F.2d 1271
    , 1272
    (10th Cir. 1980) (holding that the district court did not err by making additional
    findings on remand without taking new evidence).7
    6
    The Academy also finds it significant that the district court “never suggested
    that plaintiffs could prevail under the standard applicable under the [CRUS] or the
    standard applicable in cases involving trespassers.” Appellant’s Br. at 8 & n.3. But as
    the district court concluded there that the CRUS did not apply and that Mr. Nelson
    was an invitee or licensee, this is not surprising.
    7
    See also V. G. Lewter, Power of Trial Court, on Remand for Further
    Proceedings, to Change Prior Fact Findings as to Matter Not Passed Upon by the
    Appellate Court, Without Receiving Further Evidence, 
    19 A.L.R. 3d 502
    (1968) (“If
    the lower court then [on remand] perceives an error in its own former proceedings,
    15
    Second, we recount the district court’s findings in Nelson I. Relevant to our
    inquiry, are the undisputed findings that: “Dr Mihlbachler did not believe the path
    was an official recreation trail, or that outside users were invited or permitted to use
    the path for 
    recreation,” 20 F. Supp. 3d at 1117
    , and “Dr. Mihlbachler did not believe
    there was an urgent need to have the path repaired because it was on the CDOT and
    MVEA [Mountain View Electric Association] easement and was present for their
    use,” 
    id. The court
    then sets forth “Findings of Additional Fact,” based on the
    evidence at trial. Of relevance, those findings state: “Dr. Mihlbachler knew of the
    existence and condition of the path.” 
    Id. at 1122.
    “Dr. Mihlbachler had seen five or
    six people use the path for walking, jogging, and biking prior to September 3, 2008.
    He saw most of these people before 2005, when the Struthers Road was built. The
    construction of Struthers Road in 2005 provided an alternate route [through the area]
    so that people did not need to use the asphalt path.” 
    Id. “Dr. Mihlbachler
    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. Thus, if it were an official trail, he would have reported the
    condition of the path to maintenance to get it repaired.” 
    Id. (emphasis added).
    “He
    also testified that he did not think the path was being used by pedestrians or bikers.
    such as inconsistent findings of fact and the like, not touched upon by the appellate
    court, there would appear to be no reason why it could not change its former findings
    to any extent not prohibited by the appellate court mandate, even if the change in
    findings would result in the application of a different legal principle and a
    corresponding change in the ultimate holding.”).
    16
    Thus, the thought never occurred to him that the damage to the path would create a
    safety hazard.” 
    Id. at 1122–23
    (emphasis added). “Dr. Mihlbachler’s decision not to
    do anything about the sinkhole on the path 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 responsibility of the Academy. It also was based on the fact that he did not think
    people were using the path for recreational purposes.” 
    Id. at 1123.
    On appeal, we reversed the district court’s determination that the CRUS was
    inapplicable, concluding instead that the Academy had indirectly made the asphalt
    path available for recreational use. Nelson 
    II, 827 F.3d at 929
    . But we remanded for
    the district court to consider in the first instance whether the claim fell within the
    CRUS exception. 
    Id. at 933.
    2.     Nelson III
    On remand, the district court “reviewed the entirety of the record and
    evidence, counsel’s arguments, the parties’ proposed findings of fact and conclusions
    of law, [its] previous Findings of Fact and Conclusions of Law, and Orders, and the
    Tenth Circuit Order.” Nelson 
    III, 256 F. Supp. at 1141
    . That review was focused on
    the sole issue on remand—the CRUS exception—and the court made additional
    findings of fact about each element of the CRUS exception. We consider the court’s
    findings about the two elements at issue here: (1) knowledge and (2) willfulness. We
    conclude that the findings evince no legal error.
    17
    a.     Knowledge
    The district court ended its consideration of “[w]hether the United States
    [k]new of the [p]ath and the [d]angerous [c]ondition,” 
    id. at 1152,
    by saying, “[T]he
    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,” 
    id. at 1155.
    We conclude the
    district court’s factual finding is consistent with the CRUS exception’s requirement
    of actual knowledge.
    Before finding Dr. Mihlbachler knew of the dangerous condition, the district
    court recited contrary evidence. To begin, the court repeated many of the factual
    findings from Nelson I. 
    Id. at 1144.
    It then proceeded to catalog the relevant
    evidence, even when it appeared internally inconsistent. For example, the district
    court noted that Dr. Mihlbachler “testified that to his understanding there was 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” and 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
    [he] known that it was designed . . . as a trail.” 
    Id. at 1147
    (emphasis added). The
    district court also noted that “Dr. Mihlbachler chose not to do anything about the
    sinkhole . . . based on his perception that it was on the CDOT and MVEA easement
    for their use and was not the Academy’s responsibility,” 
    id., and “the
    fact that he did
    18
    not think people were using the path for recreational purposes,” 
    id. at 1148.
    As in
    Nelson I, the district court summarized Dr. Mihlbachler’s testimony: “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. He did not
    think that the hole was likely to cause anyone harm.” 
    Id. at 1148.
    But Nelson III also referred to evidence that supported the district court’s
    ultimate finding on knowledge, reiterating the Nelson I finding that Dr. Mihlbachler
    “saw members of the public use the path on five or six occasions,” and although
    “most” of those occasions were “before 2005,” some occurred after the installation of
    the new Struthers Road in 2005. 
    Id. Thus, the
    evidence and testimony expressed in
    the “Findings of Fact” section are in tension and appear to be best understood as a
    compilation of the relevant testimony.
    It is the district court’s “Conclusions of Law” that resolve this apparent
    conflict. The district court sifts through Dr. Mihlbachler’s testimony and provides the
    court’s reasons for discounting some of it. To illustrate, the conclusions state, “Dr.
    Mihlbachler 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.” 
    Id. at 1151
    (emphasis added). The district
    court then rejects this testimony, explaining: “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
    19
    standards.” 
    Id. Thus, while
    the district court’s findings accurately relate Dr.
    Mihlbachler’s testimony regarding his motives and beliefs, the inclusion of those
    statements cannot be read, as the Academy insists, as the district court’s imprimatur
    of their veracity.
    Instead, the district court found Dr. Mihlbachler knew the sinkhole was a
    dangerous condition by considering circumstantial evidence of his knowledge.
    Colorado law permits this manner of proving knowledge. See Christoph v. Colo.
    Commc’ns Corp., 
    946 P.2d 519
    , 523 (Colo. App. 1997) (“[K]nowledge . . . may be
    proved either by direct evidence of actual knowledge, or by circumstantial
    evidence.”). Dr. Mihlbachler 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. See
    Termini v. United States, 
    963 F.2d 1264
    , 1269 (9th Cir. 1992) (“That only two
    vehicles per day typically use the spur [road] seems to us much less important than
    the fact that it abruptly terminates at a cliff.”). In other words, the danger was
    obvious enough to support the district court’s inference—sufficient to overcome Dr.
    Mihlbachler’s testimony about lack of a hazard—that he actually knew the sinkhole
    was dangerous and likely to cause harm.
    To be sure, the district court could have more precisely separated its actual
    findings of fact from its recitation of the evidence and from its legal conclusions. But
    we are not bound by the label attached by the district court. See, e.g., Hjelle v. Mid-
    State Consultants, Inc, 
    394 F.3d 873
    , 879 (10th Cir. 2005) (noting that the district
    20
    court’s labels are “irrelevant for purposes of appeal”); Feartherstone v. Barash, 
    345 F.2d 246
    , 250 (10th Cir. 1965) (noting that the requirement with regard to findings of
    fact and conclusions of law “are far from rigid and unworkable, or unadaptable to
    practical court administration”); Houck v. Hinds, 
    215 F.2d 673
    , 676 (10th Cir. 1954)
    (holding that the appellate court is not bound by the designation or finding or
    conclusion attached by the district court). Here, the Nelson III opinion relates the
    evidence in its findings of fact, including portions of the testimony that are in
    conflict, and then resolves that tension in its conclusions of law. Where we are able
    to understand the basis for the district court’s decision, we will not hold it to a “rigid
    and inflexible” standard. See 
    Feartherstone, 345 F.2d at 250
    .
    b.     Willfulness
    After concluding that Dr. Mihlbachler, and therefore the Academy, knew of
    the dangerous condition, Nelson 
    III, 256 F. Supp. at 1155
    , the district court turned to
    the question of whether the failure to guard or warn was “willful.” It concluded that
    despite any statements to the contrary, “Dr. Mihlbachler also knew, prior to
    September 2008, that people had used the path for recreational purposes.”8 
    Id. at 1161.
    The district court then provided a detailed three-part analysis of its conclusions
    regarding the Academy’s willful failure to guard or warn.
    8
    This finding is contrary to the Academy’s position that “[t]he court did not
    find that any of the employees who were aware of the path’s use were also aware of
    the sinkhole.” Appellant’s Br. at 10.
    21
    First, noting that “[t]he Academy’s knowledge and failure to act regarding the
    path must be considered in conjunction with Dr. Mihlbachler’s actions or failures to
    act,” the district court reiterated Dr. Mihlbachler’s responsibility for investigating the
    substantial erosion problems and his discovery of the dangerous condition caused by
    the sinkhole. 
    Id. at 1162.
    Second, the court reaffirmed that “Dr. Mihlbachler and the Academy did
    nothing . . . to warn the public of the sinkhole/washout or to guard against the danger
    of erosion that caused the sinkhole.” 
    Id. In doing
    so, the district court expressly
    rejected Dr. Mihlbachler’s purported rationale for failing to act:
    Dr. Mihlbachler acknowledged that if the path had been an official Academy
    trail, the condition of the asphalt path that he observed would be a safety
    hazard for users of the path and he would have reported the condition of the
    path immediately to maintenance to get it repaired. The fact that the Academy
    had not officially designated it as an official trail does not, however, make it
    less dangerous to the public. Similarly. the fact that Dr. Mihlbachler thought
    the trail was to be maintained by CDOT and MVEA does not make it any less
    dangerous. . . . Yet, Dr. Mihlbachler consciously chose not to do anything or
    tell anyone about the sinkhole because he felt it was not a high priority relative
    to all the other erosion issues that he was dealing with along the eastern
    boundary.
    
    Id. at 1163
    (emphasis added).
    Third, after explaining its reasons for finding Dr. Mihlbachler’s contrary
    assertions implausible, the district court concluded: “Dr. Mihlbachler acted
    ‘voluntarily, intentionally, and with a conscious disregard for the consequences of the
    act’ when he chose not to make the sinkhole a priority or to do anything to warn
    about it or guard against its danger.” 
    Id. That is,
    the court concluded that Dr.
    Mihlbachler acted willfully.
    22
    The district court rejected the Academy’s argument that Dr. Mihlbachler “did
    not actually ‘know’ that the sinkhole posed a danger . . . as he did not believe anyone
    was still using the path for recreational purposes . . . .” 
    Id. Again noting
    that Dr.
    Mihlbachler had seen people using the path for recreational purposes, the court
    stressed that “there is no evidence that he thought something had been done to
    subsequently preclude its use.” 
    Id. at 1164.
    Considering all the objective facts known
    to Dr. Mihlbachler, the district court also concluded that “a reasonable person would
    believe the sinkhole would be dangerous to anyone using the path for recreational
    purposes, and specifically, bicycling—where a person may not be able to see the
    sinkhole in time to stop.” 
    Id. The Academy
    takes issue with this conclusion, claiming it reflects the
    improper use of a constructive knowledge standard: “The district court determined
    that it was sufficient to establish liability that a reasonable person in Dr.
    Mihlbachler’s position would have appreciated that a recreational user might
    eventually use the path and that the sinkhole would create a dangerous condition for
    such a user.” Appellant’s Br. at 32. This misconstrues the district court’s analysis.
    First, the district court found that Dr. Mihlbachler was actually aware of recreational
    use. Nelson 
    III, 256 F. Supp. at 1161
    . Second, the district court considered the
    reasonableness of Dr. Mihlbachler’s ignorance as one factor relevant to its analysis of
    whether Dr. Mihlbachler’s testimony is believable and thus, whether he in fact had
    actual knowledge.
    23
    Indeed, Nelson III continues by noting further concerns about Dr.
    Mihlbachler’s veracity: “Dr. Mihlbachler’s testimony that he did not do anything
    about the sinkhole based on his perception that it was on the CDOT and MVEA
    easement and was not the responsibility of the Academy is inconsistent with his
    testimony that he took no action because it was not a high priority relative to all the
    other erosion issues that he was dealing with,” his understanding that he had the
    discretion to fix the path, and “his testimony that if he had been aware of the ‘Bicycle
    Path’ sign on the path or that it 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 taken “the proper action to prevent a safety hazard.” 
    Id. at 1164–65.
    The court also found suspect Dr. Mihlbachler’s claim that he “thought the
    path belonged to MVEA or CDOT,” yet “didn’t see any urgency to have the hole
    repaired by them or by the Air Force Academy.” 
    Id. at 1164.
    The clear import of the
    district court’s decision is that it did not believe Dr. Mihlbachler: “Dr. Mihlbachler’s
    testimony that he took no action in regard to the sinkhole because he thought it was
    CDOT’s and/or MVEA’s responsibility is . . . not credible.” 
    Id. at 1165.
    And those
    concerns were pervasive. The district court concluded, “Dr. Mihlbachler knew that
    he, as the Academy agent, could take action to fix the sinkhole or make it safe,
    regardless of whether the sinkhole was on [the] CDOT or MVEA easement,” and the
    court could also see “no reason” Dr. Mihlbachler could not have contacted CDOT or
    MVEA about the sinkhole. 
    Id. 24 Based
    on its careful review of the evidence on remand, the district court
    concluded: “[T]he Academy and Dr. Mihlbachler, its agent, willfully ignored the
    dangerous condition on the path and chose not to take any steps to warn or guard
    users like Mr. Nelson against that danger.” 
    Id. And it
    further concluded that, even
    considering his actions in isolation, “Dr. Mihlbachler acted willfully in failing to
    warn or guard against a known dangerous condition likely to cause harm.” 
    Id. The district
    court’s conclusion is adequately supported by its findings and
    consistent with Colorado law. Thus, the CRUS exception applies. And because Dr.
    Mihlbachler’s knowledge and conduct are properly imputed to the Academy as his
    employer, the Nelsons may recover against the Academy.
    C.     Justifiable Excuse
    The Academy’s final argument is that Dr. Mihlbachler could not have failed
    to warn or guard willfully because his good-faith belief that CDOT was responsible
    for the maintenance of the path provided a justifiable excuse for inaction. Assuming,
    without deciding, that “willful” under Colorado law requires the absence of a
    justifiable excuse, we conclude that Dr. Mihlbachler did not have one. As discussed,
    the district court expressly found incredible Dr. Mihlbachler’s testimony that he
    chose not to do anything about the sinkhole because he thought it was on the CDOT
    easement. 
    Id. In addition,
    the Academy has cited to no authority—and has made only
    conclusory arguments—to support its claim that a landowner’s good-faith belief that
    someone else is responsible for a dangerous condition on its land provides a
    25
    justifiable excuse for inaction. Neither the statutory requirements nor common sense
    favor the Academy’s claim.
    Under the CRUS, a landowner is liable where it actually knows of a dangerous
    condition likely to cause harm and purposefully fails to warn or guard against such
    danger despite that knowledge. See Colo. Rev. Stat. § 33-41-104(1)(a); 
    Przekurat, 428 P.3d at 517
    . Nothing in the CRUS exempts such liability simply because another
    party is responsible for the dangerous condition; the duty to warn or guard against the
    danger remains in effect. A landowner who decides not to act in the face of a known
    danger because it believes someone else is responsible for the maintenance of its land
    does not fail to act any less purposefully than does the landowner who decided not to
    act because it did not consider the danger “a high priority.” See Nelson III, 256 F.
    Supp. 3d at 1148.
    Further, even if Dr. Mihlbachler were correct that CDOT, not the Academy,
    was obligated to repair the sinkhole, he did nothing to alert CDOT about the
    sinkhole. Cf. Baughman v. Cosler, 
    459 P.2d 294
    , 298 (Colo. 1969) (holding that a
    landlord who “fails to disclose to his lessee any condition . . . which involves
    unreasonable risk of physical harm to persons on the land, is subject to liability to the
    lessee and others . . . for physical harm caused by the condition” if, among other
    things, the landlord “has reason to expect that the lessee will not discover the
    condition or realize the risks” (quoting Restatement (Second) of Torts § 358 (Am.
    Law. Inst. 1965)); see also Palmer v. Alltel N.Y., Inc., 
    643 N.Y.S.2d 792
    , 792 (1996)
    (holding that, despite property being subject to an easement, landowner has
    26
    “nondelegable duty” to third parties); Hartman v. Walkertown Shopping Ctr., Inc.,
    
    439 S.E.2d 787
    , 791 (N.C. Ct. App. 1994) (holding that land owner had duty to warn
    of unsafe conditions in easement-controlled area).
    Even assuming such a defense is available, the Academy has failed to provide
    a justifiable excuse for its willful failure to guard or warn against the likely harm
    posed by the sinkhole.
    III.   CONCLUSION
    We AFFIRM the district court’s decision.
    27