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Railroad may owe duty of care to injured contractor

BNSF Railroad

A railroad company may owe a duty of care to a contract worker who required an amputation below the knee after an excavator ran over his foot in the rail yard, an appellate court held on Thursday.

In Blakesley v. BNSF Railway Co., a three-judge panel of the Colorado Court of Appeals, Division 7 in Denver unanimously reversed a trial court decision that held that BNSF Railway was not liable to the worker in his personal injury action, holding that a person of authority at the railway company owed a duty to provide reasonable job site safety instructions.

Richard Blakesley worked as a welder for Denver-based Mountain Main Welding and Fabrication Co., which had been contracted to work on a light rail project that partially ran through Fort Worth, Texas-based BNSF Railway Co.’s rail yard.

BNSF employed a “flagger” to protect its property during the construction. The flagger was also responsible for conducting safety meetings each morning with any workers who entered its rail yard and explain the company’s safety policies. These policies included the requirement that everyone in the vicinity of the rail yard wear a high-visibility safety vest.

On the day of his accident, Mr. Blakesley spoke with the BNSF flagger, who informed him of the safety vest requirement. He then asked the flagger if he could remove his vest — which was flammable — during welding and cutting. The BNSF flagger said he could remove the vest, and testified that he thought that was a “good action” based on the vest’s flammability. However, not long after the conversation, an excavator ran over Mr. Blakesley’s foot while he was positioning a large pipe to be cut. He was not wearing his vest.

He sued BNSF for negligence. A state district court granted summary judgment in favor of all defendants based on the exclusive remedy of the Workers Compensation Act. Mr. Blakesley appealed, and an appellate court affirmed as to all defendants except the railway company, concluding that since BNSF was not an employer, it was not protected by the act, but remanded the case. The district court held BNSF did not owe a duty of care to Mr. Blakesley.

He appealed, arguing that the district court erred in its conclusion, and the appellate court agreed. The court noted that by not uniformly applying BNSF’s job site safety standards — which the flagger himself was tasked with enforcing — that “the flagger created the risk that an equipment or train operator” would not see Mr. Blakesley because he was not wearing a high visibility safety vest, and could suffer from “serious bodily injury as a result.”

The court also concluded that a “reasonably thoughtful person” would take into account that “removing the high visibility safety vest would increase the risk of being run over by jobsite machinery.”

Although the flagger could have declined to authorize a departure from the railroad’s job site safety standards or deferred responsibility, the court held that when the BNSF flagger gave Mr. Blakesley jobsite safety instructions that he — and therefore BNSF — owed a duty to provide reasonable instructions.

The appellate court, therefore, reversed the case and remanded to determine whether the flagger breached the duty of care owed to Mr. Blakesley.

The attorney for Mr. Blakesley could not immediately be reached for comment. The attorney for the BNSF declined to comment.


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