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Hines v. Denver and Rio Grande Western Railroad Co.8/15/1991
In this wrongful death action, defendants, The Denver and Rio Grande Western Railroad Company, engineer Donald Aksamit, and conductor Frank Danicic, appeal the trial court's judgment entered upon a jury verdict awarding compensatory and punitive damages in favor of plaintiff, Thelma Hines, as a result of the death of her husband, Kennedy Hines. Plaintiff cross-appeals, contending the trial court erred in denying her motion for costs. We affirm in part, reverse in part, and remand.
In September 1985, the decedent and a friend were hiking to a fishing spot in a remote area of the Gore Canyon. While walking between the railroad tracks near the east end of the canyon, the decedent was hit by a Rio Grande train and killed. The train, carrying six empty cars and 18 cars loaded with liquid petroleum gas, had been travelling at a speed of approximately 40 mph.
Representatives of the railroad and the Federal Railroad Administration investigated the accident. The results of the pulse events data from the train's "black box" and the crew's statements conflicted in significant respects, most notably the number of warning whistles sounded prior to the time when the brakes were applied. The railroad did not communicate with decedent's family regarding the investigation, and it did not make its findings available to them until the pre-trial discovery process. The jury returned a verdict of $160,000 for the wrongful death claim, which was reduced by 25 percent for the decedent's comparative negligence. The jury also determined that the Railroad should pay plaintiff $160,000 in punitive damages.
I.
The Railroad first contends that the trial court erred in denying its motion for a directed verdict on the punitive damages claim. We agree.
The focus of the punitive damages claim centered around the Railroad's conduct of its investigation into the accident. The issue, thus, was whether the Railroad's alleged failure to inquire adequately into the circumstances of the accident and its failure to inform plaintiff promptly of the results of its investigation breached any duty owed to her. We conclude that, under the circumstances of this case, the Railroad had no such duty.
The question whether a defendant owes a plaintiff a duty to act to avoid injury is a question of law to be determined by the court. Smith v. City & County of Denver, 726 P.2d 1125 (Colo. 1986). The court determines the existence and scope of the duty; that is, it rules whether and to what extent the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo. 1980).
In determining whether the law imposes a duty on a particular defendant, many factors are to be considered. These factors may include, for example, "the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the defendant's conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden upon the defendant." Smith v. v. City & County of Denver, supra. No one factor is controlling, and the question whether a duty should be imposed in a particular case is essentially fairness under contemporary standards, i.e., whether reasonable persons would recognize a duty and agree that it exists. Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo. 1987).
Plaintiff asserts that the Railroad undertook a duty to protect her interest when it began the accident investigation. She argues that the Railroad's failure to conduct an adequate investiga
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