case this morning is nelson versus united states number seventeen thirteen eighty eight sound pretty certain but in your brief you say this case presents a novel question of statutory interpretation the sort of suggests to me that maybe in colorado this isn't a settled matter is this something that should have been certified or that's still should be certified to the colorado supreme court i'll take the second half of that first year on with should this be for biden but last time we were here that that exact same question and certainly certification is an option available to the court that being said the last time we were here the court ultimately decided that the available tools of statutory construction honor it interpreted a different clause of the statute that like this one had not previously been addressed by colorado courts and indeed there's essentially no colorado authority for a product from within the colorado state court system constru sexual reconstruction aid here i think there's three things the court ten looks to that will inform its assessment and one is the statutory text and structure it's out and there are couple of features of that i want to highlight one is the requirements are you fine with saying that there was a will cook willful failure to guard warn against right up to there and then you know i wouldn't your honor because i think willful here doesn't just mean was it an y believed that there was no one going recreational use of the path and as a result the thought never occurred to him that anyone would be injured now but we also have evidence that other people that were employees or agents of your client knew that this path was used by the public and the why can't we collectively at the knowledge of the institutional defendant we do it all the time in these types of cases you absolutely can impute knowledge under certain circumstances and the relevant question here is how colorado cases how would colorado courts address collective knowledge in this context but i think it's important to understand that just because they didn't have it taken down and they also now have knowledge that there's a gaping sinkhole in the middle of the designated bike path i mean isn't that if you do nothing at that point isn't that a willful saliers to guard against a light condition likely to cause harm no your honor i with regard to the bike path sign they didn't even if they didn't have a duty to monitor the path they sent someone out who did monitor the path saw a gaping hole in it and did zero so they sent somebody out to monitor the path or rather they sent somebody out to survey erosion issues in the area of the past primarily to figure out the impact on a species of jumping nets then that person there was a factual finding by the district court that that person was brief we're not trying to challenge the district court's factual findings there is one respect in which i think it's important to highlight a pretty fundamental defect in the court's fact finding and that's with regard to the court's adverse credibility finding with respect  one small portion of dr mailbox opinion which relates to his genuine belief that easement holders were responsible for the upkeep of the path in its original decision after a trial the district court expressly edge a one sixty nine and a one aware of the responsibility with regards to travels what were designated trails but the district court also found the doctor mailbox or knew this was in a designated trail and found as a matter of fact that dr mailbox were genuine we believe there was no occasions where he saw people using so if you see go to jail for fourteen what you'll see is the district court crediting dr mailbox first testimony that he had seen people in the town on a handful of occasions years earlier but the intervening construction of a new and are you is it your argument that dr miller bach or didn't know that condition was dangerous forget about the the use of the path for a second that that he did he know  isn't it reasonable to assume if you have the asphalt path that someone might be using the power well two things with regard to that your honor one is he did think somebody was using the path he thought was being used by vehicles operated by the statutes use of the phrase should have no well i've looked up some other formulations from other states and some of them say actual knowledge some of some of them say known or should have known and then here we have not which doesn't say either go back to i have strayed from it a bit but on the knob on the collective knowledge issue i think it's quite important to look at the jacobs case which is the only case from colorado that was discussed in the  specifically based on the knowledge of or is predicated on the fact that this one employee had had all the requisite knowledge is that a crystal ball is that it isn't just that definitively answer this question but the sense that we're trying to discern what colorado courts would do here especially in the context of the statute designed to protect landowners designed to induce landowners to open up their property so that no more there won't be no tr signs put up so that there won't be fences hung up so that let me get recreational did you happen to look at the jaylene the brown case from the colorado court of appeals i'm afraid i haven't your honor well and we don't want to use up more  go ahead well i was just going to point out the colorado has recognized collective knowledge certainly in the insurance context and it relies on the restatement of agency and if you look at the restatement of agency is very clearly allows for imputation of collective knowledge to corporations and entities why would we assume that colorado wouldn't do that here oh i again i want to be clear about keeping conscious disregard or what we would say is conscious of what should have been required was conscious awareness of the danger to the public that implies a person who is conscious of it and therefore because of the heightened intent standard that's why for many years that the public use the path for recreational purposes if you put that together with dr mailbox or why isn't the air force academy on the water they've got a dangerous situation again that's just another way of saying i think i'm agreeing with the court that you can assume under normal rules of in few patients knowledge that the cabbie was aware of use of the past and was aware of the thing call through dr mailbox or that get is simple negligence but that doesn't get you is conscious awareness of the public is being put in jeopardy for that you need somebody you need a person who recognized and knew both facts and therefore could appreciate their implication in your best case for that is this jacobson case now i bicyclists routinely but i don't care it's not my problem or whatever he says then you would concede the liability or not yeah i think we look at it now you didn't really answer judge matheson's question because he read it as part of the court's earlier finding about the attack and we knew that there were people on this pathway and i asked you to combine that and it sounds to me like if you combine it based on the answer you just get to me the you lose i don't think so your honor because you can know two things without appreciating their their applications get there if you look at what this court that about you talk recreational actually advocate if you look at what the new the utah supreme court that about it's only recreational use what you need is not just knowledge of the dangerous conditions and what you need some appeal is a shame on the part of the landowner that the public is put in jeopardy and imputation doesn't get you to read the level of conscious awareness that doesn't get you to the real it will mean under colorado law because i think i will be able to help the court have some confidence that that is a question you can resolve without having to resort to the colorado supreme court to answer on some of these factual questions mr salzman that there is one fact finding in the district courts twenty seven order that they are challenging on appeal and that concerns who's responsible for taking care of the easement he said that's a minor credibility point that is the a cornerstone of his case good faith no boxer didn't do anything because he was acting in good faith and i'm going to get back to that in the second the first point i want to make is having nothing had happened since that time that would lead him to conclude that the public had been precluded from using it you have a new rug the that was his explanation well sure that's his rationale but some excuse as to why maybe the public wouldn't be using it is not the same as saying they're precluded from using it particularly when you have the sign you have all the other people in the agency who are aware of this and so the admission even if there's some contrary evidence that could have led to a different fact finding judge phillips the fact is the courts here found he was on notice of public use they have not challenge that seems to me that's game over a game over if the district court also found that soccer mailbox where did not consider the condition of the path of the dangerous to the public so there's there's a couple dangerous emergency situation doesn't that get us to this whole question of collective knowledge well if it could and it also gets us to the question of willfulness and i can address collective knowledge in two ways i agree mchugh i think jacobs does not tell us a lot about what the colorado supreme court might do with that the government is wrong in saying that jacobs found negligence based on collect knowledge that is not an issue with the case what the court in jacob's did was said you can look at past incidents as evidence of the existence of a hazard it's not at all what the government attributes to jacobs so the question on collective knowledge in my mind is has the government given this court any reason to reject the eight or nine cases cited by the district court in support of the precise  twenty cases he cites twenty cases for his analysis i'll be right on the collective knowledge up to give us your best case or two well i think it's eight or nine cases sotto around here that's one or two i don't i institution knew as a whole i think oh ok but i think i think the point mr saunders was making i don't want to put words in his mouth but i'll just make it a question doesn't it matter whether the this issue is considered in the context of a negligence claim on one hand as opposed to the context of a willful claim here here we're talking about the exception to the colorado recreational act negligence is now off the table we've moved on to this exception and do you have a case where collective knowledge was recognized whan an element of the claim is  willful disregard in the face of a known danger i mean i'm if there's a colorado case that be very helpful it's on throwing in terms i don't have a colorado case but one of those cases with the one i know they're not colorado cases where i'm not i'm looking for in can't write well those are all cases that involve willful malice under recreational use statute and they look to the collective knowledge of the united states government employs and you don't have a you know i have one for for colorado that's correct and i will add however that's the distinction that mr hoffman has drawn collected knowledge in general might go to negligence but not  defend a judgment in the wake of the government trying to carry its burden of proving that there was an error and when mr salzman draws a distinction and offers no argument and no authority that supports it i think the government has willfulness as to conduct and in that context under colorado law the requirement is that you're consciously aware of what it is that you work through it and mill buckler is consciously aware he sees th sinkhole and he says i'm not going to do anything about it because i have bigger priorities well in it that would be fine if there is nobody use that we're not because how can you likely have harm if nobody's using the power well because if you look at willfulness as applied only to conduct then you get to the third and fourth elements which is known dangerous condition likely to cause harm which was conceded by the air force it has those elements have not been challenged on appeal and that's why the chase it ends up getting a little convoluted where where did they say that the air force where did they concede that they knew it was a dangerous condition well it's a it's an true that there is a title to the order that says findings of fact where the court recounts all the testimony at trial and he doesn't try to square any of the inconsistency is he doesn't make any findings about credibility in that just i'm this is number sixty three paragraph sixty three as he didn't as he did not think the path was being used by pedestrians or bikers the thought never occurred to dr mailbox that the damage to the path was create a safety hazard he did not think that the hole was likely to cause anyone harm what are you supposed to do with that here's what here's what you're supposed to do with it it is recounting dr blockers testimony because in the court's conclusions of law i just read the paragraph how did not and that was that an unfair reading i think it's unfair to say that the court is accepting that testimony as truthful and not contradicted by any other evidence well then how does how do you get you are on notice of public use i think you get there that way i think you can get there through collective knowledge i think you can get there through the fact that the government has conceded it's a known dangerous condition i gotta stop you there give me the record welcome you may have to follow up as i don't want to take a few i haven't seen that and that's an important point i'll take you will take you up on the invitation i will follow up with a letter today pointing this out as a matter of what dr results so marci tells you why crime is distinguishable judge phillips to your question you have three cases cited by the united states in support of their contention that you need to consciously expose the public to a substantial risk of injury in order to act willfully and they are trying to ask them construction their united blood services and their safe house or wives safe of alliance and united blood services rely strictly on try aspin construction for their definition of the word will burn trying to direct us to the words of the statute not cases that don't have the same language and here's my question as precisely which is we have this language a known dangerous condition obviously someone had to know about the condition is the question of danger and the question of likelihood of harm is that a question for the determine whether it was dangerous and likely to cause harm and the air force conceded that so you know of the condition it is of the nature described in the statute and then all that is required is that there is no warning or remedial actions taken purposely willfully that is how the statue works it has four requirements for liability three of them are not contested in this case the only issue presented by the government on appeal is well for us and i have to go back because i know that court is struggling i think with what willfulness should mean under colorado law as its use in the statutes and i hundred eighty nine it referred to wanton and reckless behavior the supreme court said that's a really high standard it's intent to injure it's almost the standard proposed by the government a substantial likelihood of harm that you're consciously that you're punitive damages statute under the current meaning of willful and wanton it is consciously aware of your conduct that you knew or should have known was likely to cause injury that is an objective district court after it went through its collective knowledge analysis said and even if i disregard collective knowledge no boxer himself had all the knowledge that's necessary to hold the air force of people so let me just let's say just for the sake of discussion that colorado does not allow for proof of this exception through collective knowledge that that if you're going to get there it's it's only through mailbox or that you think you can get there through him absolutely because he observed the sinkhole according to the district court farthing he is on notice that the public is using the property and he does nothing about it and once under courts versus security life of denver if you knew or should have known it was likely to result in injury then you're liable and should have no