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
, JJ., concur.
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.
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
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
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
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
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
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 .
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.
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
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 ...