Biker Swallowed By Sinkhole

Burg Simpson Attorneys Win Second Appeal to Protect $7.3 Million Verdict

On September 3, 2008, Mr. James Nelson suffered severe and life-changing injuries, including a permanent brain injury, when his bicycle was swallowed by a large sinkhole on a bike path located on the property of the United States Air Force Academy in Colorado Springs.  Mr. Nelson lay comatose overnight, and was teetering on the edge of death, when he was discovered by a jogger the following morning.  Since the accident, James Nelson has undergone numerous surgeries and medical procedures.

During two trials in 2013 and 2014, U.S. District Court Judge Wiley Daniel found the U.S. Air Force Academy responsible for the injuries sustained by Mr. Nelson and his wife Elizabeth Varney, and awarded them approximately $7.3 million. On appeal to the 10^th Circuit Court of Appeals, the Government persuaded the panel to vacate this award under the Colorado Recreational Use Statute, but remanded the case for further proceedings to determine whether or not the actions of the United States were “willful.”

In proceedings back before Judge Daniel, Burg Simpson shareholders David Hersh and Steven Greenlee persuaded the Court that the conduct of the Air Force was in fact “willful.” They proved the representative of the United States Air Force was aware that the sinkhole completely traversed the bike path for at least two weeks before the Nelson crash, but chose not to repair the washout in the path, or warn users that the dangerous condition existed.  On June 9, 2017, Judge Daniel affirmed his award to the Nelson/Varney plaintiffs, and determined that the “willful conduct” exception to the Colorado Recreational Use Statute prevented the United States from claiming immunity from suit.

On February 12, 2019, following a second appeal to the 10^th Circuit by the United States, a panel of the 10^th Circuit Court of Appeals affirmed the Judgment entered by District Court Judge Daniel. The 10th Circuit found that Judge Daniel correctly determined that the United States had acted willfully and therefore is responsible for the damages sustained by Mr. Nelson and Ms. Varney. The trial court has also ruled that the Plaintiffs are entitled to their attorney fees in this matter, but the amount has not yet been decided.

Eleven years is a long time to wait, but the end is now in sight. The Nelson/Varney family is thrilled that this matter is coming to resolution, and these funds will allow them to obtain the care Jim needs and focus on their ongoing recovery.

Pictured above, from left to right, are: Burg Simpson shareholder, Mr. David P. Hersh, Mr. James Nelson, and Burg Simpson paralegal, Ms. Autumn Goes.

To read the article published by Law Week Colorado, click here.

Michael Roberts, a reporter from Westword also covered this story here: