Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Blakesley v. BNSF Railway Company

Court of Appeals of Colorado, Seventh Division

August 1, 2019

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

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

          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

          OPINION

          BERGER, JUDGE

         ¶ 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.

         ¶ 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 regarding the high visibility vest requirement.[4] We agree.

         A. 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. 2008).

         ¶ 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. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.