Perry v. Union Pacific Railroad Company
ORDER. The Motion [# 81 ] is DENIED to the extent that Plaintiff asks the Court to hold that Defendants duty under 49 C.F.R. § 240 is nondelegable as a matter of law, by Magistrate Judge Kristen L. Mix on 1/11/2022.(agarc, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 19-cv-00806-KLM
KRAIG W. PERRY,
UNION PACIFIC RAILROAD COMPANY,
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Leave to File Motion for
Determination as a Matter of Law That Defendant’s Duty Under 49 C.F.R. § 240 Is
Nondelegable [#81]1 (the “Motion”). Defendant filed a Response [#92] in opposition to
the Motion [#81], and Plaintiff filed a Reply [#93]. The Court has reviewed the Motion
[#81], the Response [#92], the Reply [#93], the entire case file, and the applicable law,
and is fully advised in the premises. For the reasons set forth below, the Motion [#81] is
This matter involves a negligence claim against Defendant Union Pacific Railroad
Company. See Am. Compl. [#15] ¶ 24. Plaintiff was employed as a heavy equipment
operator by non-party Tri-State Generation & Transmission Association, Inc. (“Tri-State”).
“[#81]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Order.
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Id. ¶ 3. On November 30, 2017, Defendant supplied a train of locomotive rail cars loaded
with coal to Tri-State for unloading by Tri-State employees. Id. ¶¶ 9, 11. Plaintiff, while
working on the locomotive rail cars delivered by Defendant, was injured, and his injury
resulted in an above-the-knee amputation. Id. ¶ 19. In its Order adjudicating the Motions
for Summary Judgment [#57, #59], the Court held that, “as a matter of law, . . . pursuant
to 49 C.F.R. § 240, Defendant had a duty to ensure that its leased equipment was
operated only by qualified locomotive engineers.” Order [#78] at 29. In the present
Motion [#81], Plaintiff asks the Court to further hold that this duty was nondelegable by
Defendant to Tri-State.
Defendant first argues that Plaintiff’s Motion [#81] is untimely and should have
been asserted by the dispositive motions deadline. Response [#92] at 2. Plaintiff argues
that “[i]t is the Court’s Order that prompts this Motion.” Motion [#81] at 2. In other words,
Plaintiff appears to argue here that he could not previously argue that the duty was
nondelegable until the Court first issued a ruling as to whether the duty applied here at
all. This argument is specious. Nothing precluded Plaintiff from appropriately arguing in
its Partial Motion for Summary Judgment [#57] that the Court should find a duty and that
the duty was nondelegable. Nevertheless, as discussed below, the Court finds that the
Motion [#81] should be denied on the merits, and accordingly makes no ruling on the
timeliness of the Motion [#81].
The Federal Railroad Administration’s regulation 49 C.F.R. § 240 generally
concerns “Qualifications and Certification of Locomotive Engineers.”2 The “[p]urpose and
This regulation was recently amended, effective January 14, 2021. The Court cites to
the version of the regulation in effect at the time of the events underlying this lawsuit.
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scope” of this regulation is as follows: “(a) The purpose of this part is to ensure that only
qualified persons operate a locomotive or train. (b) This part prescribes minimum Federal
safety standards for the eligibility, training, testing, certification and monitoring of all
locomotive engineers to whom it applies. (c) The qualifications for locomotive engineers
prescribed in this part are pertinent to any person who operates a locomotive . . . .” 49
C.F.R. § 240.1.
Plaintiff cites no binding case law or even persuasive authority regarding whether
any duty under this specific regulation is nondelegable. See [#81, #81-1, #93]. The Tenth
Circuit Court of Appeals has provided little guidance regarding if or when a duty is
nondelegable in a given context under federal law. See, e.g., Twiford v. Corr. Health
Partners, LLC, No. 19-cv-03587-RBJ, 2020 WL 3000960, at *6 (D. Colo. June 4, 2020)
(“[t]he nondelegable doctrine has not yet been addressed by the Tenth Circuit . . . .”). In
Colorado, “[t]he core principle behind all nondelegable duties is that the responsibility is
so important to the community that the employer should not be permitted to transfer it to
another.” Spring v. City and County of Denver, 13 P.3d 794, 804 (Colo. 2000) (internal
quotation marks omitted). For example, “a landlord has a nondelegable duty to keep the
premises in a reasonably safe condition for the benefit of tenants,” and “[a] landowner
may not delegate to an independent contractor the obligation to exercise reasonable care
to protect invitees and licensees against dangers within the scope of the [premises
liability] statute.” Id.
The legal authority Plaintiff provides is not persuasive to the Court that the duty
here is nondelegable. Nearly all of the cases cited by Plaintiff concern whether the
government may delegate certain duties to private entities, the landlord-tenant
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relationship, or the employer-employee relationship, all of which are unlike this case
which involves whether one private entity may delegate a duty to another private entity
on the latter’s private property.
First, Plaintiff cites Estate of Lovern v. Correct Care Solutions, LLC, No. 18-cv02573-KLM, 2019 WL 2903589 (D. Colo. July 3, 2019), McGill v. Correctional Healthcare
Companies, Inc., No. 13-cv-01080-RBJ-BNB, 2014 WL 5423271 (D. Colo. Oct. 24, 2014),
and West v. Atkins, 487 U.S. 42 (1988), all of which concern the constitutional right of
inmates to adequate medical care. Motion [#81-1] at 4-5; Reply [#93] at 3. “[T]he State
cannot by choosing to delegate its constitutional duties to the professional judgment of
others, thereby avoid all liability flowing from the attempted fulfilment of those duties under
Section 1983.” Melnick v. Raemisch, No. 19-cv-00154-CMA-KLM, 2021 WL 4133919, at
*12 (D. Colo. Sept. 10, 2021) (citation omitted). The Court cannot find that these cases,
which involve the delegation of the government’s duty to ensure that constitutional rights
are not violated in the context of medical care for inmates, are sufficiently analogous to
show that Defendant’s duty here was nondelegable.
Second, Plaintiff cites Springer v. City and County of Denver, 13 P.3d 794 (Colo.
2000), Reid v. Berkowitz, 315 P.3d 185, 192 (Colo. App. 2013), Jules v. Embassy
Properties, Inc., 905 P.2d 13 (Colo. App. 1995), and Kidwell v. K-Mart Corp., 942 P.2d
1280 (Colo. App. 1996), all of which address Colorado’s premises liability statute, Colo.
Rev. Stat. § 13—21—115, which concerns landlords and tenants. Plaintiff cites other
premises liability cases from other states as well here, including Wilson v. University
Mansion Limited Partnership, No. 17-CV-217-GKF-JFJ, 2018 WL 10128068 (N.D. Okla.
Mar. 29, 2018), Rodriguez v. Kroger Co., 422 P.3d 815, 818 (Utah Sup. Ct. 2018), and
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Sola v. Wal-Mart Stores, Inc., 100 A.3d 864 (Conn. App. 2014). The core principle in
these cases appears to be that “[a] landowner may not delegate to an independent
contractor the obligation to exercise reasonable care to protect invitees and licensees
against dangers within the scope of the [premises liability] statute.” Springer, 13 P.3d at
804. Here, the issue does not concern Defendant’s real property; rather, the issue is the
use of Defendant’s personal property, i.e., its locomotives, on another’s real property, i.e.,
Tri-State’s real property. The reasoning behind the premises liability statutes simply does
not transfer to these circumstances.3
In a similar vein to the premises liability cases, the Sixth Circuit in Marr v. Rife, 503
F.2d 735, 741 (6th Cir. 1974), held that “[t]he discriminatory conduct of an apartment
manager or rental agent is, as a general rule, attributable to the owner and property
manager of the apartment complex, . . . because the duty to obey the law is nondelegable.” Again, this case concerns the obligation of a real property owner to ensure
that the law is followed on his own property. The reasoning behind the Sixth Circuit’s
holding is therefore distinguishable from the present case. Further, the Restatement
(Second) of Torts, § 419, Comment c (“If the lessor is under a statutory or contractual
duty to repair, he is subject to liability not only for harm caused by the careless or unskillful
workmanship which the contractor bestows upon the repairs which he makes but also for
harm caused by the contractor's failure to make any repairs or his delay in setting about
the work of repairing.”), involves the duties of a lessor of land, and is therefore inapplicable
Relatedly, the Colorado Jury Instructions—Civil 9:24, Notes on Use ¶ 5, discusses that
jury instructions relating to the nondelegable duty doctrine may be given when appropriate, but
the Note cites only (as is relevant here) to Reid, Kidwell, and Springer, and therefore provides no
additional legal authority for the use of the doctrine in the context of the present case.
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Plaintiff also cites Brown v. CSX Transportation, Inc., 363 F. Supp. 2d 1342, 1344
(M.D. Fla. 2005), where the court held that an employer had a nondelegable duty under
the Federal Employers’ Liability Act to furnish its employees with a reasonably safe place
to work, and, thus, an employee could prevail on his claim against his employer even if
only third parties were actually negligent. That case, and that statute, concern the
employer-employee relationship, which is inapplicable here.
Next, Plaintiff cites Baer v. United States, 150 Fed Cl. 761 (2020), for the
proposition that the nondelegable duty doctrine has been applied to taxpayers. The Court
there held that a taxpayer has a nondelegable duty to adhere to filing deadlines. Baer,
150 Fed. Cl. at 766-67. The United States Court of Federal Claims provided no general
discussion of the nondelegable duty doctrine which could be interpreted to apply outside
of the specific context of taxpayer duties. Thus, Baer is distinguishable from the present
In Bear Medicine v. United States, 192 F. Supp. 2d 1053, 1066 (D. Mont. 2002),
the District of Montana noted that, under Montana law, “an employer is vicariously liable
for injuries to others caused by a subcontractor’s failure to take precautions to reduce the
unreasonable risks associated with engaging in an inherently dangerous activity,” and
that Montana “imposes a non-delegable duty upon project owners to ensure that
contractors performing inherently dangerous work employ proper safety precautions.” In
its Order [#78] on the parties’ cross-motions for summary judgment, the Court held that
there are issues of fact which must be resolved by a jury in order to determine whether
locomotives powered by distributed power are inherently dangerous. See Order [#78] at
26. As reflected by the Court’s holding in Ber Medicine, a finding that an activity is
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inherently dangerous must precede a determination of whether a duty relating to the
activity is delegable or not. Without a determination of the dangerousness issue first, the
Court cannot determine whether Defendant had a nondelegable duty here.
Finally, in Zimmerman v. Norfolk S. Corp., 706 F.3d 170, 180 (3d Cir. 2013), the
Third Circuit held that “railroads are ultimately responsible for compliance” to “ensure that
their trains are travelling within the [speed] limit.” As Defendant points out, this statement
was made in the context of deciding whether the plaintiff’s claims were preempted and in
determining when a federal standard of care had been established. See Reply [#92] at
3. The case generally concerned public safety, not the safety of individuals employed on
private property, i.e., here, the training standards of employees of a non-railroad thirdparty. Any relationship here is simply too tenuous for the Court to broadly determine that
Defendant’s duty under 49 C.F.R. § 240 is nondelegable as a matter of law.
Thus, for the reasons stated above, the Court finds that the legal authority Plaintiff
provides is not persuasive that the duty at issue here is nondelegable. The Court itself
has also found no legal authority, binding or persuasive, that Defendant’s duty here was
nondelegable as a matter of law based on the present posture of this case. Thus, the
Motion [#81] must be denied.
Based on the foregoing,
IT IS HEREBY ORDERED that the Motion [#81] is DENIED to the extent that
Plaintiff asks the Court to hold that Defendant’s duty under 49 C.F.R. § 240 is
nondelegable as a matter of law.
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Dated: January 11, 2022
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