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Blakesley v. BNSF Railway Co.

Court of Appeals of Colorado, Seventh Division

August 1, 2019

Richard Blakesley, Plaintiff-Appellant,
v.
BNSF Railway Company, Defendant-Appellee.

Page 716

          City and County of Denver District Court No. 14CV31144. Honorable Elizabeth A. Starrs, Judge.

         COUNSEL:

          Evan 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 Defendant-Appellee.

          Dunn and Casebolt[*] , JJ., concur.

          OPINION

          BERGER, JUDGE

Page 717

         [¶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.[1] So, when he provided Blakesley instructions regarding the high visibility vest requirement, he, and thus BNSF, owed Blakesley a duty to provide reasonable instructions.

          I. 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 injury occurred.

Page 718

         [¶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 vest.[2]

         [¶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.[3] 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 that time.

         [¶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' Compensation Act .

         [¶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 . . . ." Id.

         [¶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 law.

          II. 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 ...


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