     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               August 1, 2019

                                 2019COA119

No. 18CA1047, Blakesley v. BNSF Railway Company — Torts —
Personal Injury — Negligence — Duty of Care — Misfeasance

     In this personal injury case, the division holds that a person

who has jobsite authority owes a duty of care based on misfeasance

in giving jobsite safety instructions.
COLORADO COURT OF APPEALS                                         2019COA119


Court of Appeals No. 18CA1047
City and County of Denver District Court No. 14CV31144
Honorable Elizabeth A. Starrs, Judge


Richard Blakesley,

Plaintiff-Appellant,

v.

BNSF Railway Company,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division VII
                         Opinion by JUDGE BERGER
                        Dunn and Casebolt*, JJ., concur

                          Announced August 1, 2019


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


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶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




                                    1
 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


 1 To be clear, this duty applied only to the act of giving the
 instruction. The instruction did not create any further duty to
 protect Blakesley either before or after the instruction was given.


                                     2
 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.


 2 Federal regulations promulgated by the Occupational Safety and
 Health Administration and other federal agencies may also have
 required the wearing of high visibility safety vests, but our decision
 does not depend on whether federal regulations were violated when
 the BNSF flagger permitted Blakesley to remove his vest. See, e.g.,
 29 C.F.R. § 1926.651(d) (2018); Occupational Safety and Health
 Administration, Standard Interpretation: Whether use of high-
 visibility garments by construction workers in highway work zones is
 required (Aug. 5, 2009), https://perma.cc/F4US-44FX.
 3 Blakesley’s employer had provided him with a high visibility safety

 vest, but, inexplicably, the vest was flammable, an obviously poor fit
 for a welder.

                                     3
¶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




                                       4
  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




  4 Blakesley specifically contends that the district court (1) failed to
  follow the mandate of Blakesley v. BT Construction, Inc., (Colo. App.
  No. 16CA0763, Mar. 30, 2017) (not published pursuant to C.A.R.
  35(e)); (2) applied nonfeasance standards in a misfeasance case;
  and (3) incorrectly applied those standards. Because we review de
  novo and conclude that a duty of care based on misfeasance
  applied, we do not further address these specific contentions.

                                     5
  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. Keeton & David G. Owen,

  Prosser and Keeton on the Law of Torts § 314, at 373 (5th ed.

  1984)).

¶ 15   To decide this appeal, we consider misfeasance, rather than

  nonfeasance, because the BNSF flagger is alleged to have “created a

  new risk of harm” to Blakesley when he told him, contrary to

  BNSF’s jobsite rule, that he did not have to wear a high visibility

  safety vest at certain times on the jobsite. 5 Id.


  5 On appeal, Blakesley does not contend that BNSF had any duty to
  him based on nonfeasance or assumption of duty, so we do not
  further address those questions. See Jefferson Cty. Sch. Dist. R-1 v.
  Justus by and through Justus, 725 P.2d 767, 771 (Colo. 1986)
  (describing the test for whether a defendant has assumed a duty of
  care).

                                      6
¶ 16    When determining the existence and scope of any particular

  duty in a misfeasance case, we consider (1) the risk involved; (2) the

  foreseeability and likelihood of injury as weighed against the social

  utility of the actor’s conduct; (3) the magnitude of the burden of

  guarding against injury or harm; and (4) the consequences of

  placing the burden upon the actor. Smit, 72 P.3d at 373 (citing

  Casebolt v. Cowan, 829 P.2d 352 (Colo. 1992)).

             No one factor is controlling, and the question
             of whether a duty should be imposed is
             essentially one of fairness under contemporary
             standards, as foreseeability includes whatever
             is likely enough in the setting of modern life
             that a reasonably thoughtful person would
             take it into account in guiding his or her
             practical conduct. . . . Thus, a conclusion that
             a duty does or does not exist is an expression
             of policy considerations that lead the law to
             say whether a plaintiff is entitled to protection.

  Id.

¶ 17    To determine whether BNSF owed a duty of care based on

  misfeasance, we consider the factors described in Smit as well as

  the analysis in other cases in which the Colorado courts have

  applied those factors. Westin Operator, LLC v. Groh, 2015 CO 25;

  Casebolt, 829 P.2d 352; Montoya, 216 P.3d 98; Smit, 72 P.3d 369.




                                     7
¶ 18   In each of those cases, the court concluded that a duty of care

  applied to the defendant’s misfeasance:

       •    A hotel owed a duty of care in evicting intoxicated guests

            into a winter night. Westin, ¶ 32.

       •    A vehicle storage lot owner owed a duty of care because

            he allowed a visitor to violate the lot’s safety rules.

            Montoya, 216 P.3d at 105.

       •    A company that agreed to be the general contractor of a

            construction site but did not supervise the site owed a

            duty of care. Smit, 72 P.3d at 373.

       •    A business owner owed a duty of care when he allowed

            an employee, who had been drinking, to drive a company

            car. Casebolt, 829 P.2d at 361.

                                B.     Analysis

                           1.        Risk Involved

¶ 19   As to the first factor, the risk involved, Westin, Montoya, Smit,

  and Casebolt all involved the risk of serious bodily injury. Montoya

  concluded that, by “not uniformly apply[ing] its customer safety

  rules,” the lot owner “created a risk that either friends and family

  members using its storage lot or third parties could be injured.”


                                        8
  216 P.3d at 105. Similarly, here, by not uniformly applying BNSF’s

  jobsite safety standards, which the BNSF flagger himself was tasked

  with enforcing, the flagger created the risk that an equipment or

  train operator would not see Blakesley because he was not wearing

  a high visibility safety vest and cause him serious bodily injury as a

  result.

       2.    Foreseeability and Likelihood of Injury Weighed Against the
                               Conduct’s Social Utility

¶ 20        In Westin, ¶ 35, it was foreseeable that evicting inebriated

  hotel guests on a cold, winter night might lead to a drunk driving

  accident. Similarly, in Casebolt, 829 P.2d at 361, it was foreseeable

  that leaving the company car in the care of an employee who had

  been drinking might lead to a drunk driving accident. And in Smit,

  72 P.3d at 373, it was foreseeable that failing to supervise a

  particularly dangerous step in the construction process might

  result in serious physical injury.

¶ 21        In Montoya, 216 P.3d at 106, the division concluded that a tow

  truck driver’s injury was the foreseeable result of the failure to

  uniformly apply the lot’s safety rules. The owner of a vehicle

  storage lot, in contravention of the lot’s rules, allowed a friend onto



                                         9
  the lot unsupervised, where the friend replaced the tires on his

  Mustang with older ones before having it towed to a separate

  salvage lot. Id. at 103. While the Mustang was being towed, one of

  its wheels fell off because the lug nuts had not been properly

  replaced. Id. at 101. When the Mustang’s wheel fell off, the tow

  truck driver stopped and got out of the truck to see what had

  happened. Id. Then, a passing car struck a brake drum that had

  been dislodged when the wheel fell off, propelling it into the driver

  with such force that it shattered his leg. Id. at 101.

¶ 22   The injury in this case was significantly more foreseeable and

  likely than the injury in Montoya and similar in terms of

  foreseeability and likelihood to the injuries in Westin, Smit, and

  Casebolt. The purpose of the high visibility vest was obvious both

  at the time of Blakesley’s injuries and now. The record reflects that

  there was a jobsite rule, imposed by BNSF, that all workers on the

  site were required to wear high visibility vests, precisely to avoid the

  harm that ultimately befell Blakesley.

¶ 23   To support its summary judgment order, the district court

  relied on its conclusion that “the risk contemplated by [Blakesley]

  and the [BNSF flagger] was the risk of [Blakesley’s] vest catching


                                     10
  fire.” But the proper inquiry in duty of care analysis is not what

  risks the BNSF flagger actually considered. Instead, we must ask

  whether a reasonable person would have considered the risk of the

  injury that occurred. Smit, 72 P.3d at 372. And, for the reasons

  discussed above, we conclude that a “reasonably thoughtful

  person,” when providing instructions regarding the use or non-use

  of the high visibility safety vest, would take into account that

  removing the high visibility safety vest would increase the risk of

  being run over by jobsite machinery. Id. at 373.

¶ 24   As to social utility, the division in Montoya, 216 P.3d at 106,

  observed that there was little social utility in allowing the Mustang

  owner to break the lot’s safety rules and concluded that the

  likelihood of injury far outweighed the social utility of the lot

  owner’s conduct.

¶ 25   Viewed in a vacuum, the social utility in the flagger’s

  instruction was that it allowed Blakesley to continue his work

  without the risk of his high visibility vest catching fire. But this

  perspective ignores (1) the fact that decreasing the fire risk

  increased the risk that he might be hit or run over by jobsite




                                     11
  machinery and (2) that other readily available courses of action

  would not have increased Blakesley’s risk of being run over.

¶ 26    The BNSF flagger could have declined to answer Blakesley’s

  question, leaving it to Blakesley and the general contractor to

  address the question. Or he could have expressly told Blakesley to

  address his question to the job superintendent. Or, he could have

  told Blakesley that he needed to obtain a nonflammable high

  visibility vest. 6

¶ 27    Instead, the BNSF flagger told him he did not have to wear the

  high visibility vest at certain times, creating an obvious risk of harm

  that would not have existed had the flagger either enforced BNSF’s

  jobsite safety standards or chosen one of the other options. 7

  Considering these circumstances, we conclude that the likelihood of

  injury outweighed any social utility of the flagger’s instruction to

  disregard BNSF’s high visibility vest requirement.




  6 The record reflects that nonflammable high visibility vests could
  have been made available at the time of Blakesley’s injuries.
  7 We express no opinion on the reasonableness of the BNSF

  flagger’s instruction or the reasonableness of the other options
  available to him.

                                    12
       3.   Magnitude of the Burden of Guarding Against the Injury

¶ 28    Third, as to the magnitude of the burden of guarding against

  the injury, in Westin, Montoya, Smit, and Casebolt, the court

  concluded that the burden was low because there were other

  courses of action the defendant easily could have taken to reduce or

  eliminate the risk involved. For instance, in Westin, ¶ 36, multiple

  “relatively low-cost options [were] available” — the hotel could have

  called the intoxicated guests a taxi, allowed them to wait in the

  lobby until a taxi arrived, or called the police. Similarly, in Smit, 72

  P.3d at 373, the contractor could have refused to serve as general

  contractor, supervised the wall raising itself, or required the use of

  a subcontractor.

¶ 29    The burden is even lower here because, as discussed above,

  the flagger could easily have declined to authorize a departure from

  BNSF’s jobsite safety standards; declined to answer the question,

  thus deferring any responsibility; or told Blakesley to obtain a

  nonflammable high visibility vest, thus avoiding the risk of harm

  that his permission created.




                                     13
           4.   Consequences of Placing the Burden on BNSF

¶ 30   Finally, as to the consequences of placing the burden on

  BNSF, the division in Montoya concluded that the lot owner “was in

  the best position to bear the burden of disclosing to third parties

  when the customer safety rules did not apply” and that it was

  “unreasonable for [the lot] to hold itself out as a professional vehicle

  storage lot, yet allow some individuals . . . not to abide by the rules

  . . . .” Montoya, 216 P.3d at 106. Similarly, if BNSF requires high

  visibility safety vests on the jobsite, but then permits workers under

  various circumstances not to abide by that rule, it is entirely

  appropriate that BNSF be responsible for the consequences of

  allowing an individual not to wear a high visibility safety vest.

¶ 31   The district court noted the BNSF flagger’s lack of contractual

  authority on the jobsite, but the record before us shows that the

  BNSF flagger had some level of authority with respect to the

  wearing of high visibility vests — he conducted safety meetings, met

  with individuals before they entered the jobsite to provide safety

  instructions, required everyone (apparently except Blakesley) to

  wear the vests, and instructed Blakesley as to when he should and

  should not wear the vest.


                                     14
¶ 32   Under these circumstances, and considering the Smit factors

  discussed above, we conclude that when the BNSF flagger gave

  Blakesley jobsite safety instructions, he, and thus BNSF, owed a

  duty to provide reasonable instructions.

                        III.   Other Considerations

¶ 33   We must make clear what we do not decide. We do not

  conclude that the BNSF flagger’s instruction created a duty to then

  supervise Blakesley or otherwise oversee the jobsite beyond BNSF’s

  contractual responsibilities. The duty of care applied only to the act

  of giving the instruction.

¶ 34   We do not conclude whether the BNSF flagger breached the

  duty of care owed Blakesley when he instructed him that he did not

  have to wear his high visibility vest at certain times on the jobsite.

  That question is for determination on remand.

¶ 35   Further, events occurring after the instruction was given are

  relevant to other elements of tort analysis not before us on this

  appeal. We do not consider, for instance, whether Blakesley was

  following the BNSF flagger’s instruction when he was injured.

  Though the district court concluded that Blakesley was not

  following the instruction when he was hit by the excavator, that is


                                     15
  relevant to causation, not the existence of a duty. 8 Similarly, we do

  not consider whether Blakesley’s later conversation with the BTC

  spotter and equipment operator would impact the liability, if any, of

  BNSF, under the doctrines of intervening cause, comparative

  negligence, or otherwise.

¶ 36   And, of course, we express no opinion regarding either the

  ultimate validity of Blakesley’s claim or the multitude of defenses

  raised by BNSF.

                              IV.   Conclusion

¶ 37   The summary judgment is reversed, and the case is remanded

  for further proceedings on Blakesley’s negligence claim. 9


  8 Based on the record before us, we cannot determine whether
  Blakesley was following the BNSF flagger’s instruction when he was
  struck by the excavator. First, it is not clear from the record when
  the BNSF flagger’s instruction permitted Blakesley to remove his
  vest. Second, even if, as the district court concluded, Blakesley was
  only permitted to remove his vest while he was “welding,” it is not
  clear whether “welding” would include positioning the pipe so that it
  could be cut or other tasks incidental to welding.
  9 At the conclusion of oral argument, Blakesley’s counsel asked, for

  the first time, that we assign a different district court judge on
  remand. We reject this baseless and procedurally improper request
  for multiple reasons. Blakesley has made no proper motion for a
  change in judge, he did not raise this request in his briefings, and
  he has cited nothing besides the district court’s adverse rulings
  against him that would support the assignment of a different judge.


                                     16
     JUDGE DUNN and JUDGE CASEBOLT concur.




It is well established law that adverse rulings alone do not
constitute grounds to replace a judge. In re Marriage of McSoud,
131 P.3d 1208, 1223 (Colo. App. 2006).

                                17
