and County of Denver District Court No. 14CV31144 Honorable
Elizabeth A. Starrs, Judge
Case, LLP, John M. Case, Centennial, Colorado; Dworkin,
Chambers, Williams, York, Benson & Evans, P.C., Steven G.
York, Denver, Colorado, for Plaintiff-Appellant
Fowler, Schimberg, Flanagan & McLetchi, P.C., Daniel M.
Fowler, Brian E. Widmann, Golden, Colorado, for
1 In this personal injury action, plaintiff Richard Blakesley
contends that defendant BNSF Railway Company is liable to him
for the damages he sustained on a construction site when an
excavator ran over his foot, ultimately resulting in
amputation of his leg below the knee. After this court
partially reversed an earlier summary judgment in favor of
BNSF, Blakesley v. BT Construction, Inc., (Colo.App.
No. 16CA0763, Mar. 30, 2017) (not published pursuant to
C.A.R. 35(e)) (Blakesley I), BNSF again moved for
summary judgment, contending that it owed no duty of care to
Blakesley. The trial court agreed with BNSF and dismissed
Blakesley's negligence claim. Blakesley again appeals,
and we reverse.
2 The only issue before us is whether BNSF owed Blakesley a
duty of care when a BNSF employee instructed Blakesley, in
contravention of BNSF's jobsite rules, that he did not
have to wear a high visibility safety vest at certain times
on the jobsite. Because the BNSF employee was in a position
of authority regarding the high visibility vest requirement,
he owed a duty of care when providing jobsite safety
instructions regarding the vests. So, when he provided
Blakesley instructions regarding the high visibility vest
requirement, he, and thus BNSF, owed Blakesley a duty to
provide reasonable instructions.
Relevant Facts and Procedural History
3 Blakesley, a welder, was injured while working on the Gold
Line light rail project in Denver when an excavator crushed
his foot. The Regional Transportation District (RTD) had
employed BT Construction, Inc. (BTC), to install utilities
along the light rail line, and BTC subcontracted with
Mountain Man Welding, Blakesley's employer, to provide a
welder. Part of the light rail line ran through BNSF's
rail yard, including BTC's construction site where the
4 BNSF employed a "flagger" to protect BNSF
property during the construction and to ensure that BNSF
trains ran smoothly in the rail yard. The BNSF flagger was
also responsible for conducting safety meetings in the
mornings and meeting with anyone before they entered the
jobsite to explain BNSF's safety policies. These safety
policies included a requirement that everyone in the vicinity
of the railroad tracks wear a high visibility safety
5 On arriving at the job site, Blakesley spoke with the BNSF
flagger, who told him of BNSF's high visibility safety
vest requirement. Blakesley then asked if he could remove his
high visibility safety vest - which was flammable - while he
was welding and cutting. The BNSF flagger said that he could,
explaining at his deposition that he "thought that was a
good action" based on the vest's flammability.
6 Not long after that conversation, an excavator ran over
Blakesley's foot while he was positioning a large pipe to
be cut. He was not wearing a high visibility safety vest at
7 Blakesley sued several defendants, including BNSF, alleging
negligence. The district court granted summary judgment in
favor of all defendants based primarily on the Workers'
8 Blakesley appealed, and a division of this court affirmed
as to all defendants except BNSF, which was not
Blakesley's employer and thus was not protected by the
Workers' Compensation Act. Id. The division
concluded that BNSF owed no duty of care to Blakesley under
the terms of BNSF's contract with RTD, but it remanded
the case to determine whether any issues of material fact
existed regarding the conversation between Blakesley and the
BNSF flagger, and "whether that conversation created a
duty outside the scope of the contract . . . ."
9 On remand, the district court concluded that no issues of
material fact existed, BNSF did not owe a duty of care to
Blakesley, and BNSF was entitled to judgment as a matter of
Duty of Care
10 Blakesley contends the district court erred in concluding
that the BNSF flagger, and thus BNSF, did not owe him a duty
of care when giving him jobsite safety instructions regarding
the high visibility vest requirement. We agree.
Standard of Review and Applicable Law
11 We review a summary judgment de novo. Montoya v.
Connolly's Towing, Inc., 216 P.3d 98, 103 (Colo.App.
12 To recover on a negligence claim, "a plaintiff must
establish the existence of a legal duty on the
defendant's part, defendant's breach of that duty,
causation, and damages." Smit v. Anderson, 72
P.3d 369, 372 (Colo.App. 2002). Whether a defendant owes a
duty to a particular plaintiff and the scope of any duty owed
are questions of law that we review de novo. Metro. Gas
Repair Serv., Inc. v. Kulik, 621 P.2d 313, 317 (Colo.
1980); Command Commc'ns, Inc. v. Fritz Cos., 36
P.3d 182, 189 (Colo.App. 2001).
13 "In determining whether a defendant owes a duty to a
particular plaintiff, the law distinguishes between acting
and failure to act, that is, misfeasance, which is active
misconduct that injures others, and nonfeasance, which is a
failure to take positive steps to protect others from
harm." Smit, 72 P.3d at 372.
14 The reason for the distinction is that "by
'misfeasance' the defendant has created a new risk of
harm to the plaintiff, while by 'nonfeasance' he has
at least made his situation no worse, and has merely failed
to benefit him by interfering in his affairs." Univ.
of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987)
(quoting William Lloyd Keeton, Dan B. Dobbs, Robert E. ...