Nelson, et al. v. United States, No. 20-1267 (10th Cir. 2022)
Annotate this CasePlaintiff-appellee James Nelson was seriously injured while riding his bicycle on a trail on Air Force Academy property in Colorado. He and his wife, Elizabeth Varney, sued the United States under the Federal Tort Claims Act (“FTCA”). Nelson sought damages for his personal injuries; Varney sought damages for loss of consortium. After several years of litigation, the district court ruled the government was liable for Nelson’s accident and injuries. The court based its decision on the Colorado Recreational Use Statute (“CRUS”). The court awarded Nelson more than $6.9 million, and awarded Varney more than $400,000. In addition to the damages awards, the district court also ordered the government to pay plaintiffs' attorney’s fees. CRUS contained an attorney’s-fees-shifting provision, allowing prevailing plaintiffs to recover their fees against defendant landowners. Providing an exception to the United States’s sovereign immunity, the Equal Access to Justice Act (“EAJA”) provided that “[t]he United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.” The district court concluded that the government had to pay for plaintiffs' fees. The issue this case presented for the Tenth Circuit's review centered on whether the district court erred in ordering the government to pay the attorney's fees after holding the CRUS qualified under the EAJA as “any statute which specifically provides for” an attorney’s fees award. Finding no reversible error, the Tenth Circuit affirmed the district court.
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