CO Code § 33-41-104 (2021)
2021 Colorado Code|Title 33 - Parks and Wildlife|Article 41 - Owners of Recreational Areas - Liability|§ 33-41-104. When Liability Is Not Limited

  Nothing in this article limits in any way any liability which would otherwise exist:   For willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm;    For injury suffered by any person in any case where the owner of land charges the person who enters or goes on the land for the recreational use thereof; except that, in case of land leased to a public entity or in which a public entity has been granted an easement or other rights to use land for recreational purposes any consideration received by the owner for such lease, easement, or other right shall not be deemed a charge within the meaning of this article nor shall any consideration received by an owner from any federal governmental agency for the purpose of admitting any person constitute such a charge;    For maintaining an attractive nuisance; except that, if the property used for public recreational purposes contains mining operations that were abandoned or left in an inadequate reclamation status as provided in section 33-41-103 (2)(e)(II) or was constructed or is used for or in connection with the diversion, storage, conveyance, or use of water, the property and the water or abandoned mining operations within such property shall not constitute an attractive nuisance;    For injury received on land incidental to the use of land on which a commercial or business enterprise of any description is being carried on; except that in the case of land leased to a public entity for recreational purposes or in which a public entity has been granted an easement or other rights to use land for recreational purposes, such land shall not be considered to be land upon which a business or commercial enterprise is being carried on.        History. Source: L. 69: R&RE, p. 412, § 1. C.R.S. 1963: § 62-4-4. L. 88: (1)(b) and (1)(d) amended, p. 1182, § 3, effective May 29. L. 97: (1)(c) amended, p. 54, § 5, effective March 21. L. 2006: (1)(c) amended, p. 21, § 2, effective March 8. History. Source: L. 69: R&RE, p. 412, § 1. C.R.S. 1963: § 62-4-4. L. 88: (1)(b) and (1)(d) amended, p. 1182, § 3, effective May 29. L. 97: (1)(c) amended, p. 54, § 5, effective March 21. L. 2006: (1)(c) amended, p. 21, § 2, effective March 8.    ANNOTATION   “[K]nowingly” refers to one's awareness of objective facts, while “willfully” pertains to one's subjective intent to act on--or in spite of--that awareness. Nelson v. United States, 915 F.3d 1243 (10th Cir. 2019).   To be “willful”, an action must be taken voluntarily, purposefully, and with a conscious disregard for the consequences of the act. It is more than negligence. Willfulness does not, however, require that a government employee be consciously aware that his or her acts or omissions create danger or risk to the safety of others, or that the employee intended to harm another. Nelson v. United States, 256 F. Supp. 3d 1136 (D. Colo. 2017 ), aff'd, 915 F.3d 1243 (10th Cir. 2019).   The knowledge element of the liability exception in subsection (1)(a) 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. Nelson v. United States, 915 F.3d 1243 (10th Cir. 2019).   Accordingly, a landowner may be liable only if its agent actually knew of the existence of a sinkhole that caused a user's injuries and that the sinkhole was likely to cause harm. Nelson v. United States, 915 F.3d 1243 (10th Cir. 2019).   A “dangerous condition” is a physical condition of a facility or the use of a facility that constitutes an unreasonable risk to the health or safety of the public. Nelson v. United States, 256 F. Supp. 3d 1136 (D. Colo. 2017 ), aff'd, 915 F.3d 1243 (10th Cir. 2019).   Taxpayer status does not satisfy the “charge” requirement of subsection (1)(b). Kirkland v. United States, 930 F. Supp. 1443 (D. Colo. 1996 ).   The phrase “incidental to the use of land” requires that a nexus exist between the commercial or business enterprise and the use giving rise to the injury. Smith v. Cutty's Inc., 742 P.2d 347 (Colo. App. 1987); Kirkland v. United States, 930 F. Supp. 1443 (D. Colo. 1996 ).   A sinkhole/washout was a dangerous condition likely to cause harm to users of a bike path. A sinkhole has a high probability of causing harm to a person riding a bicycle on a recreational path the landowner knows is used by cyclists if the sinkhole is of significant size and depth, covers the entire width of the path, and is hard to see. Nelson v. United States, 256 F. Supp. 3d 1136 (D. Colo. 2017 ), aff'd, 915 F.3d 1243 (10th Cir. 2019).   Landowner's agent's knowledge of a sinkhole/washout is imputed to the landowner by operation of law. Landowner and its agent knew that the path existed, knew significant erosion problems existed in that area, and specifically knew, two weeks before a cyclist was injured, of the existence of the dangerous condition on the bike path caused by erosion. Nelson v. United States, 256 F. Supp. 3d 1136 (D. Colo. 2017 ), aff'd, 915 F.3d 1243 (10th Cir. 2019).   Landowner's conduct in failing to guard or warn users of a bike path against the dangerous condition it knew existed on its property was willful. Nelson v. United States, 256 F. Supp. 3d 1136 (D. Colo. 2017 ), aff'd, 915 F.3d 1243 (10th Cir. 2019).   Landowner and its agent willfully ignored the dangerous condition on the bike path and chose not to take any steps to warn or guard users against that danger. Nelson v. United States, 256 F. Supp. 3d 1136 (D. Colo. 2017 ), aff'd, 915 F.3d 1243 (10th Cir. 2019).   Landowner not immune from liability because of landowner's willful failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm. Nelson v. United States, 256 F. Supp. 3d 1136 (D. Colo. 2017 ), aff'd, 915 F.3d 1243 (10th Cir. 2019).   Applied in Otteson v. United States, 622 F.2d 516 (10th Cir. 1980).