IN THE SUPREME COURT OF THE STATE OF ARIZONA
En Banc
STANLEY and JENNIFER GUNNELL, ) Arizona Supreme Court
husband and wife, ) No. CV-01-0120-PR
)
Plaintiffs-Appellants, ) Court of Appeals
) Division One
v. ) No. 1 CA-CV 99-0510
)
ARIZONA PUBLIC SERVICE COMPANY, ) Yavapai County Superior Court
an Arizona corporation, ) No. CV 96-0715
)
Defendant-Appellee. )
__________________________________________) OPINION
Appeal from the Superior Court in Yavapai County
The Honorable Raymond W. Weaver, Judge
REVERSED AND REMANDED
_________________________________________
Opinion of the Court of Appeals, Division One
199 Ariz. 382, 18 P.3d 176 (App. 2001)
VACATED
Law Offices of Bruce E. Rosenberg Prescott
By: Bruce E. Rosenberg
- and -
David L. Abney Phoenix
Attorneys for Plaintiffs-Appellants
Gaona Moore P.C. Phoenix
By: David F. Gaona
- and -
Lewis and Roca, L.L.P. Phoenix
By: Susan M. Freeman
Robert Fisher
Attorneys for Defendant-Appellee
Beale & Micheaels, P.C. Phoenix
By: Michael A. Beale
Attorneys for Amici Curiae Southwest Gas Corp., Salt River
Agricultural Improvement & Power District, Mohave Electric
Cooperative, Inc., and Tucson Electric Power Co.
Charles M. Brewer, Ltd. Phoenix
By: Charles M. Brewer
Luis P. Guerra
George H. Lyons
John B. Brewer
- and -
Haralson, Miller, Pitt & McAnally, P.C. Tucson
By: D. Dale Haralson
Attorneys for Amici Curiae Charles M. Brewer, Ltd., and
Haralson, Miller, Pitt & McAnally, P.C.
Osborn Maledon, P.A. Phoenix
By: David G. Campbell
Thomas L. Hudson
- and -
Fennemore Craig, P.C. Phoenix
By: Timothy Berg
Theresa Dwyer Tucson
Attorneys for Amici Curiae CoxCom, Inc., Arizona Cable
Telecommunications Association, and Qwest Corporation
______________________________________________________________________________
FELDMAN, Justice
¶1 Stanley and Jennifer Gunnell petitioned for review from the court of appeals’ affirmance
of summary judgment in favor of Arizona Public Service Company (APS). We granted review to resolve
an issue of statewide importance — whether and how the principles of comparative negligence can
be applied in a case involving the Underground Facilities Act, A.R.S. §§ 40-360.21 to 40-360.32.
We have jurisdiction pursuant to article VI, § 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.
FACTS AND PROCEDURAL HISTORY
¶2 Stanley Gunnell (Gunnell), sole proprietor of an excavation business, had a subcontract
to excavate for a contractor installing a sewer line in Cottonwood, Arizona. Before commencing excava-
tion, Gunnell met with the Cottonwood City Engineer and called the local Blue Stake Center to notify
utilities and have them mark their lines. The Blue Stake Center was established as a one-call notification
2
system by owners of underground utility lines1 to assist excavators in complying with statutory require-
ments to notify underground facility owners prior to excavating. Once an excavator calls the Blue
Stake Center, the center then notifies all of its members in the area. Owners then have two working
days to respond to the request and mark their lines. A.R.S. § 40-360.22(B).
¶3 After Gunnell’s call, the Blue Stake Center notified all its members, including APS,
to mark their lines in the area in which Gunnell planned to excavate. APS delayed, and Gunnell had
to call three more times before APS finally staked its lines. After commencing excavation, Gunnell
uncovered a galvanized steel pipe that no one had identified or marked. Because APS had not marked
the line and Gunnell, an excavator with twenty years’ experience, had never before seen an electric
line encased in steel piping, he thought the pipe was part of the local water system. He therefore contacted
the two local water companies, but they both denied ownership. Gunnell did not again call APS or
the Blue Stake Center; instead, based on his experience and the local water company’s advice,2 he
concluded that the galvanized steel pipe was an abandoned water line that could be removed by cutting
it out of the trench. Proceeding with the excavation, Gunnell had James Knox (Knox), a sub-contractor
or employee,3 cut into the pipe with a saw. The pipe actually encased a live, high-voltage APS electric
wire that exploded, seriously and permanently injuring both Gunnell and Knox.
¶4 APS initially denied owning the line, assuring Gunnell it could not be an APS line if
it were encased in a galvanized steel pipe. Later, when its employees visited the site, APS acknowledged
ownership and admitted its employee failed to identify the pipe for Gunnell’s excavation.
¶5 Gunnell brought a negligence action against APS. APS then counterclaimed for damages
to its electrical line and indemnification for a separate damage action brought against it by Knox. The
1
Such lines are called facilities in the Underground Facilities Act. See A.R.S. § 40-360.21(10).
2
There is some evidence that an employee of one of the local water companies told Gunnell
the pipe was probably an abandoned water line because the joint was cracked when Gunnell began
excavating and no water had leaked out.
3
On the record in this case, it is not altogether clear in what capacity Knox was working at the
time of the incident in question.
3
trial judge granted summary judgment for APS on both the complaint and counterclaim because Gunnell’s
negligence in excavating the supposedly abandoned line before first determining its true nature superseded
any negligence by APS. On Gunnell’s appeal, a divided court of appeals affirmed the lower court’s
ruling. Gunnell v. Arizona Pub. Serv. Co., 199 Ariz. 382, 18 P.3d 176 (App. 2001). Gunnell petitioned
for review, arguing that if both he and APS were at fault, the Uniform Contribution Among Tortfeasors
Act (UCATA) applied, so that issues of comparative negligence must be left to the jury. Given the
importance of the question, we granted review, ordered supplemental briefing, and heard oral argument.
¶6 Reviewing a grant of summary judgment, we take the facts and all reasonable inferences
in the light most favorable to Gunnell, the party opposing the motion. Orme School v. Reeves, 166
Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).
DISCUSSION
A. Underground Facilities Act
1. Responsibilities of excavators and owners
¶7 Several sections of the Underground Facilities Act, found at A.R.S. §§ 40-360.21 through
40-360.32, apply to the present case. First, an excavator must determine whether any underground
lines exist in the area of excavation before beginning work.4 Then, every owner of underground lines
is directed to locate and mark its lines within two days of receiving notice of an excavation, and excavators
cannot commence their work until marking is completed.5 Even after the owner marks its lines, an
4
A.R.S. § 40-360.22(A) states in part:
A person shall not make or begin any excavation in any public street
. . . without first determining whether underground facilities will be
encountered, and if so where they are located from each and every public
utility, municipal corporation or other person having the right to bury
such underground facilities . . . .
5
A.R.S. § 40-360.22(B) provides in part:
Upon receipt of inquiry or notice from the excavator, the owner of the
facility shall respond as promptly as practical, but in no event later than
4
excavator must still act with reasonable care.6 An excavator who encounters an unmarked line must
notify either the owner or the organization designated by the owner (in this case, the Blue Stake Center)
of the unmarked line.7 Neither an excavator nor an owner may assume an underground line is abandoned
without verification.8
¶8 On this record, there is evidence that APS violated A.R.S. § 40-360.22(B) and (I) by
breaching the requirement of identifying and marking its lines and by negligently failing to identify
and warn of the location and dangerous nature of its high-voltage line encased in the galvanized pipe.
Similarly, there is evidence that Gunnell violated A.R.S.§§ 40-360.23(B) and 40-360.22 (I) when he
uncovered an unmarked line and failed to appropriately verify its type (by notifying either the Blue
Stake Center or APS), and thus determine whether it was actually abandoned, before he cut into it.
two working days, by marking such facility with stakes, paint or in some
customary manner. No person shall begin excavating before the location
and marking are complete or the excavator is notified that marking is
unnecessary.
6
A.R.S. § 40-360.23(A) explains:
Obtaining information as required by this article does not excuse any
person making any excavation from doing so in a careful and prudent
manner, nor shall it excuse such persons from liability for any damage
or injury resulting from his negligence.
7
A.R.S. § 40-360.23(B) provides:
After markings have been made pursuant to § 40-360.22, an excavator
shall notify either the owner of an underground facility or an organization
designated by the owner if the excavator encounters an underground
facility that has not been located and marked or has been marked in the
wrong location.
8
A.R.S.§ 40-360.22(I) states that:
The owner of an underground facility shall notify the excavator whether
the facility is active or abandoned . . . . For all purposes under this
article, a facility owner, excavator . . . may not . . . treat an underground
facility is [sic] abandoned, unless the facility has been verified as aban-
doned pursuant to this subsection.
(Emphasis added.)
5
2. Liability of excavators and owners
¶9 A person who damages a line as a result of failing to excavate in a careful and prudent
manner is liable to the owner of the underground line for the repair costs. A.R.S.§ 40-360.26. Section
40-360.28(B), the key to the case, supplements this as follows:
If a violation of this article results in physical contact with an under-
ground facility, the violator is liable to the owner of the facility for all
damages to the facilities and costs, expenses and damages to third parties
incurred by the owner of the facility as a result of the contact.
(Emphasis added.) Thus, under subsection B, a negligent excavator must not only pay the owner’s
repair costs but must indemnify the line owner for all liability to third parties that the owner incurs
as a result of the violator’s contact with the line. However, when an owner fails to locate or mark
its lines, the owner is “liable for the resulting damages, costs and expenses to the injured party.”9
¶ 10 While the requirements imposed by statute on owners and excavators are clear, the
consequences for violations, as described in A.R.S. § 360.28(B) and (C), are not nearly so clear. Specifi-
cally, reading the statutes together and noting the placement of the word “all” in subsection (B), one
could argue that a violating excavator is liable for both all damages to the line and all damages the
violating owner must pay to third parties, even those caused by the owner’s violation. On the other
hand, the statute could be read to require the excavator to pay for all damage to the line and, with respect
to damages to third parties, only the proportion attributable to the excavator’s violation.
¶ 11 The problem is made more difficult in the present case because the injured person seeking
damages is not an employee of the excavator but, as sole proprietor of his business, the excavator himself.
Thus, the excavator in this case is the injured party, not a third party. Section 40-360.28(B), however,
only requires indemnity for claims made by third parties, not for claims made by one violator against
another. Gunnell argues that when, as in the present case, the excavator has himself been injured,
article XVIII, §§ 5 and 6 of the Arizona Constitution require that principles of comparative negligence
9
A.R.S. § 40-360.28(C).
6
apply. APS argues that because Gunnell was a violator/excavator, he must indemnify APS against
all claims, including his own, so that the comparative negligence statute does not apply.
B. In the trial court
¶ 12 These conflicting interpretations clashed in the trial court, where APS asserted Gunnell
was not only responsible to APS for its $524.41 property damage but must also indemnify APS for
all injuries sustained by Knox as a result of Gunnell’s statutory violation.10 In awarding summary
judgment to APS on Gunnell’s complaint and APS’s counterclaim, the trial judge concluded that A.R.S.
§ 40-360.23(B) was dispositive: When Gunnell came across the unmarked, unidentified steel pipe,
he was required to notify the owner or the Blue Stake Center, which he failed to do. The judge reasoned
that:
It is Plaintiff’s failure to contact the Blue Stake Center after he encoun-
tered the unmarked, unidentified pipe which necessitates this result,
and the failure of APS to have originally identified the pipe is not relevant
under A.R.S. § 40-360.23B.
C. In the court of appeals
¶ 13 We set out the reasoning of the court of appeals’ majority and dissent in some detail
because it clearly defines some of the issues as well as encompasses most of the arguments the parties
make in this court. The majority first concluded that Gunnell violated the Underground Facilities Act
by treating the line as abandoned and by cutting the line before having identified the pipe’s true owner.
Gunnell, 199 Ariz. at 385-86 ¶¶ 13-15, 18 P.3d at 179-80 ¶¶ 13-15. The court then rejected Gunnell’s
claim that principles of comparative negligence should apply if Gunnell were found negligent, holding
10
Knox has also sued APS, seeking damages for the injuries he sustained in the explosion.
APS has moved for summary judgment, claiming Knox was also a violator under the Underground
Facilities Act and his case should therefore be dismissed because he is not entitled to recover damages
against APS and must indemnify it on Gunnell’s claim. Of course, if Knox were Gunnell’s employee,
presumably he would also be barred by the immunity doctrine from suing his employer for damages.
His case is currently pending in Yavapai County Superior Court.
7
that under A.R.S. § 40-360.28(B), Gunnell’s negligent conduct was a superseding cause of the explosion.
Id. at 387 ¶¶ 22-23, 18 P.3d at 181 ¶¶ 22-23. Acknowledging that this conclusion was “inconsistent
with Arizona’s common law rule governing intervening and superceding causation,”11 the majority
explained its holding as follows:
The legislature determined, by writing the Act as it did, that the acts
or omissions of either a facilities owner or excavator constitute something
similar to the common law’s intervening and superceding cause. But
because the causation element for liability for the damages in this case
is governed by statute, rather than common law, we need not defer to
and endeavor to apply the common law’s rules governing intervening
and superceding causation.
Id., ¶ 23. Thus, “if an excavator, as the last in the line of [negligently] responsible parties, fails to
comply” with the conduct the statute requires, comparative negligence does not apply. Id. at 388 ¶ 25,
18 P.3d at 182 ¶ 25. Not only is the excavator barred from any recovery, he is liable as a matter of
law for damage to the line and must indemnify the line’s owner against any damages for which the
negligent owner may be liable to any third party. Id.
¶ 14 The dissent disagreed with this reading of the Underground Facilities Act. Pointing
out that APS was liable “to the injured party” under A.R.S. § 40-360.28(C) for failing to correctly
locate its lines and that Gunnell was liable to the owner and third parties under subsection B of the
same statute, the dissent noted that “neither subsection purports to trump the other” and the court’s
job should be “to harmonize the two provisions” Id., ¶¶ 31-32 (Fidel, J. dissenting). This could be
accomplished with a fault-based proportionate allocation under the comparative negligence statutes.
If the legislature wanted, it could “explicitly adopt” the interpretation followed by the majority; but
“the legislature did not profess to do so,” so we should not “use our interpretive powers to attribute
11
Arizona and other jurisdictions hold that a superseding cause is an intervening act of another
that, looking backward after the event, was both unforeseeable and extraordinary. Ontiveros v. Borak,
136 Ariz. 500, 506, 667 P.2d 200, 206 (1983); Serrano v. Kenneth A. Ethridge Contracting Co., 2
Ariz.App. 473, 475-76, 409 P.2d 757, 759-60 (1966); RESTATEMENT (SECOND) OF TORTS § 435(2),
cmts. c and d, and § 442 (1965).
8
to a silent statute an intent so inconsistent with Arizona’s fundamental law of torts.” Id. at 390 ¶ 43,
18 P.3d at 184 ¶ 43.
¶ 15 We disagree in part with both the majority and the dissent.
D. Resolution
¶ 16 On this record, we must assume both Gunnell and APS were negligent. The statutes
set a certain standard of care. By not further contacting APS or the Blue Stake Center, and by treating
the unidentified, unmarked pipe as abandoned, Gunnell violated A.R.S. §§ 40-360.23(B) and 40-360.22(I).
By failing to identify and mark its lines, APS violated A.R.S. § 40-360.22(B) and (I). Violation of
a statutory standard of care is usually held to be negligence per se. Brannigan v. Raybuck, 136 Ariz.
513, 517, 667 P.2d 213, 217 (1983) (citing Orlando v. Northcutt, 103 Ariz. 298, 300, 441 P.2d 58,
60 (1968)).
¶ 17 As Judge Fidel’s dissent points out, the text of the Underground Facilities Act does
not declare that the excavator’s negligence is a superseding cause. In our view, it implies just the opposite,
for it requires the violating excavator to indemnify a violating owner for damages to a third party.
If the excavator’s negligence were a superseding cause of the third party’s injury, the owner’s negligence
would not be a contributing cause and the owner would never be liable for those injuries. RESTATEMENT
(SECOND) OF TORTS § 435(2). There would be nothing to indemnify, and that portion of the statute
would be meaningless.
¶ 18 Judge Fidel also argued that a construction that makes each violator responsible in
proportion to its contribution to the harm may thus be “fairer and more sensible” than a construction
making an injured, negligent excavator wholly responsible to the owner even though the owner is also
a violator. Gunnell, 199 Ariz. at 389 ¶ 37, 18 P.3d at 183 ¶ 37 (Fidel, J., dissenting). Such a construction
also “achieves a broader harmony among related statutes” because it construes the Underground Facilities
Act consistently with the general liability provisions of common law and with the comparative fault
and contribution statutes, A.R.S. §§ 12-2505 and 12-2506. The statutes all relate to the subject of
9
liability for negligence and should therefore be construed as a single system governed by the general
spirit and policy of the law. Id., ¶ 38-39 (Fidel, J., dissenting) (citing Hutcherson v. City of Phoenix,
192 Ariz. 51, 54 ¶¶ 15-16, 961 P.2d 449, 452 ¶¶ 15-16 (1998); Dietz v. General Elec. Co., 169 Ariz.
505, 510, 821 P.2d 166, 171 (1991)).
¶ 19 As APS and certain of the amici point out, the problem with such reasoning, logical
though it may be, is that similar provisions regarding indemnity are found in a statute dealing with
a similar danger. See the High Voltage Power Lines and Safety Restrictions Act (Overhead Lines Act),
A.R.S. §§ 40.360.41 to 40.360.45. That act regulates activity near high-voltage overhead lines, imposing
statutory duties on contractors working in proximity to such lines and prohibiting them from requiring
their employees or any other person to perform any function near those lines without first having entered
into a safety agreement with the lines’ owner. See A.R.S. § 40-360.43. In language quite similar to
that used in the statutes applicable to the present case, the Overhead Lines Act further provides as follows:
If a violation of this article results in physical or electrical contact with
any high voltage overhead line, the person or business entity violating
this article is liable to the public utility . . . for all damages to the facilities
and all costs and expenses, including damages to third persons, incurred
by the public utility as a result of the contact.
A.R.S. § 40-360.44(B) (emphasis added).
¶ 20 Contrary to Gunnell’s view with respect to the Underground Facilities Act, both divisions
of our court of appeals have held that in the Overhead Lines Act, the legislature intended to transfer
all responsibility for a worker’s personal injuries from the negligent owner of the lines to the negligent
contractor working near the lines. See, e.g., Citizens Util. Co. v. New West Homes, Inc., 174 Ariz.
223, 848 P.2d 308 (App. 1992) (citing cases); Arizona Pub. Serv. v. Shea, 154 Ariz. 350, 742 P.2d
851 (App. 1987); Tucson Elec. Power Co. v. Swengel-Robbins Constr. Co., 153 Ariz. 486, 737 P.2d
1385 (App. 1987). Of course, in each of these cases the contractor/violator was the employer of an
injured worker who had filed an action against the negligent owner. The duty to indemnify was imposed
on the negligent contractor rather than on the injured worker himself. This case therefore presents
a situation not yet seen in our courts, for here we have a plaintiff who is both the injured worker and
10
the excavator/contractor. Thus, Gunnell and certain of the amici argue that unlike any of the overhead
lines cases that have been adjudicated, interpretation or application of the statute is constrained by
Arizona’s constitutional provisions requiring application of contributory/comparative negligence princi-
ples.
¶ 21 It is this argument that compels us to agree in part with Gunnell, for under the facts
of this case, the majority’s interpretation of the statutes would require us to conclude that the Underground
Facilities Act violates the provisions of article XVIII, §§ 5 and 6 of Arizona’s constitution. Contrary
to Judge Fidel’s statement in his dissent, the legislature is not free to “adopt the scheme the majority
attributes to it, if the legislature wished to do so.” Gunnell, 199 Ariz. at 390 ¶ 43, 18 P.3d at 184 ¶ 43
(Fidel, J. dissenting).
¶ 22 For purposes of the summary judgment motions, there was evidence that both Gunnell
and APS were negligent per se. Thus, the court should ordinarily apply the provisions of A.R.S. § 12-
2502, the portion of UCATA that enacts a comparative negligence regime. We have held that the
comparative negligence statute is constitutional under the provisions of article XVIII, § 5 of our
constitution, which declares that contributory negligence “shall, in all cases whatsoever, be a question
of fact and shall, at all times, be left to the jury.” See Hall v. A.N.R Freight Sys., Inc., 149 Ariz. 130,
717 P.2d 434 (1986). We did not hold or intimate, however, that the legislature could effectively repeal
article XVIII, § 5 by adopting UCATA. On the contrary, the constitutional requirement that the defenses
of contributory negligence and assumption of the risk be left to the jury applies to the comparative
negligence regime just as it did to contributory negligence. See Williams v. Thude, 180 Ariz. 531,
885 P.2d 1096 (App. 1994), approved and explained in Williams v. Thude (Williams II), 188 Ariz.
257, 260, 934 P.2d 1349, 1352 (1997).
¶ 23 Thus, in a negligence case, the jury is the sole arbiter of fact and law as to the defenses
of contributory and comparative negligence. Williams II, 188 Ariz. at 260, 934 P.2d at 1352; see also
Heimke v. Munoz, 106 Ariz. 26, 28, 470 P.2d 107, 109 (1970) (art. XVIII, § 5 gives a jury not only
“the right to determine the facts, but to apply or not, as the jury sees fit, the law of contributory negligence
11
as a defense.”), overruled or disapproved on other grounds by Jurek v. Jurek, 124 Ariz. 596, 606 P.2d
812 (1980). Judges may not grant summary judgment or direct a verdict for a defendant on the ground
that the plaintiff was contributorily negligent. Williams II, 188 Ariz. at 259-60, 934 P.2d at 1351-52;
Heimke, 106 Ariz. at 30, 470 P.2d at 111; Boozer v. Arizona Country Club, 102 Ariz. 544, 434 P.2d
630 (1967). To do so is not only error but has been held to be fundamental error. Williams, 180 Ariz.
at 539, 885 P.2d at 1104; Salt River Project Agric. Improvement & Power Dist. v. Westinghouse Elec.
Corp., 176 Ariz. 383, 387, 861 P.2d 668, 672 (App.1993); but see Williams II, 188 Ariz. at 261, 934
P.2d at 1353.
¶ 24 Yet the trial judge did just that — grant summary judgment for APS because Gunnell
failed to comply with the requirements of the Underground Facilities Act. Of course, both the trial
judge and court of appeals, in affirming, concluded that the legislature made an excavator’s negligence
a superseding cause and thus relieved the negligent owner of all liability to either the injured excavator
or any third person. However, article XVIII, § 5 applies not just to the courts but also to the legislature.
Schwab v. Matley, 164 Ariz. 421, 425, 793 P.2d 1088, 1092 (1990). We do not believe, therefore,
that the constitution allows the legislature to negate article XVIII, § 5 or 6 by decreeing through statute
that a negligent actor whose conduct was a cause of injury was the sole cause of the injurious event.12
¶ 25 Such a legislative declaration would violate section 5 by taking the issue of a plaintiff’s
negligence from the jury. It would violate section 6 by abrogating the injured person’s cause of action
against one whose negligence was a cause of the injury. Our courts have made it clear that when there
is evidence of negligence by a claimant, whether plaintiff or counterclaimant, the provisions of sections
12
For example, could a statute provide that the negligence of any person who fell in a retail
store would be the sole cause of the accident even though the facts might show that both the store’s
operator and the injured person were antecedently negligent? Or could a statute provide that the negligence
of a driver, involved in any automobile accident that occurred during road construction work, would
be the sole cause of the accident, notwithstanding the contractor’s antecedent failure to warn or comply
with the Manual on Uniform Traffic Control Devices? On the one hand, such statutes take the question
of contributory negligence from the jury by requiring a verdict against the plaintiff and in favor of
the defendant, thus violating the command of article XVIII, § 5 that the question of contributory negligence
shall always be left to the jury. On the other hand, such statutes result in an abrogation of the injured
person’s right of action against one whose negligence was a cause of the accident.
12
5 and 6 cannot be avoided by judicial or legislative relabeling. “A contributory negligence issue cannot
be taken from the jury by the simple expedient of calling it an issue of causation.” Markowitz v Arizona
Parks Bd., 146 Ariz. 352, 359, 706 P.2d 364, 371 (1985) (once there was evidence that defendant’s
negligent failure to warn was cause of injury, it was improper to grant summary judgment for defendant
on theory that plaintiff’s later negligent disregard of danger was sole proximate cause of plaintiff’s
injury); see also Schwab, 164 Ariz. at 423-24, 793 P.2d at 1090-91 (under art. XVIII, § 5 legislature
cannot enact statute making conduct of injured person bar to recovery against one whose negligent
conduct was a cause of injury); Beach v. City of Phoenix, 136 Ariz. 601, 604, 667 P.2d 1316, 1320
(1983); Tobel v. State, 189 Ariz. 168, 939 P.2d 801 (App. 1997) (plaintiff’s failure to look before entering
street raises defense of contributory negligence; issue cannot be taken from jury by calling it causation
question).
¶ 26 We can recognize contributory negligence when we see it, no matter what the label.
As a noted jurist said long ago:
A bear well painted and drawn to the life is yet the picture of a bear,
although the painter may omit to write over it, "this is the bear." It is
no more necessary to put the name of the action in a good declaration
than to write Bear over a good picture of that beast.
Prewitt v. Clayton, 5 T.B.Mon. 4, 2 Ky. 4 (App. 1827). Thus “(f)rom 1920 to the present time it has
been consistently held that when there is evidence that the plaintiff was negligent, whether such negligence
was a contributing cause of the injury as would deprive plaintiff of the right to recovery was solely
a question for the jury.” Layton v. Rocha, 90 Ariz. 369, 370, 368 P.2d 444, 445 (1962). Undisputed
evidence may show that the plaintiff was negligent and that this was a contributing cause of the injury;
nevertheless, under the correct interpretation of article XVIII, § 5, the jury may find in favor of the
plaintiff. Id.
13
E. Comparison with legislative intent
¶ 27 Nor do we believe that the legislature intended differently. Nothing in the sparse legislative
history of the Underground Facilities Act indicates any intent to enact a statute of superseding cause.
See Minutes of House Committee on Economic Affairs, March 5, 1973; Minutes of Senate Committee
on Agriculture, Commerce and Labor, April 5, 1973. In the Senate committee, an APS representative
“explained the provisions of the bill” as intended to “provide safe working conditions and prevent
the injuries and deaths that are occurring.” Senator Mawhinney said he would support the bill because
of his “concern regarding people involved in accidents.” In the House committee, a telephone company
lawyer stated that the “intention of this bill is to require individuals who are excavating to make inquiries
of the utility.” There is nothing in the minutes of either committee to suggest that the Underground
Facilities Act was intended to transfer all liability for fault to the negligent excavator and leave an
owner generally immune from answering for its own negligent conduct.
¶ 28 In its supplemental brief, APS argues that the legislative history of the Underground
Facilities Act and its amendments supports the exclusion of comparative fault principles. APS notes
that the legislature established a study commission on underground facilities13 whose task force14 was
to consider and report back, inter alia, on “issues concerning liability for damages to facilities and
delay.” Respondent’s Supplemental Brief at 16-17, quoting 1988 Ariz. Sess. Laws ch. 232, § 5(B)(2).
The legislative history is minimal but somewhat informative and, contrary to APS’s contentions, supports
the application rather than exclusion of comparative fault principles. For example, one study commission
subgroup was asked by a contractors’ organization to “identify those items requiring legislative action
which will equitably identify responsibility for facility damage.” Minutes of Joint Legislative Study
Commission on Underground Facilities, Attachment 2, November 14, 1988 (emphasis added). If anything,
13
Established by 1988 Ariz. Sess. Laws ch. 232.
14
The task force consisted of members of the private sector, political subdivisions, and regulatory
agencies representing interests affected by underground line laws and problems. The task force was
divided into subgroups that addressed various topics, including liability.
14
this evinces an intent for the responsibility for line damage to be fairly apportioned among those responsi-
ble. Moreover, the Ad Hoc Blue-Stake Underground Study Group issued an interim report describing
its discussion of liability issues, including the neccessity to determine the “[r]esponsibility of each
party and how to administer comparative negligence.” Interim Report (H.B. 206115), November 14,
1988, at 2 (emphasis added).
¶ 29 Thus, it appears from the legislative history that those both knowledgeable and concerned
about the Underground Facilities Act may have assumed that comparative negligence would be applied
and were conscious that they must equitably apportion responsibility for line damage.
¶ 30 APS finds it significant that the study group recommended, and the legislature agreed,
not to alter the liability and indemnity provisions despite UCATA’s enactment. However, the interim
report explains why the group recommended the liability provisions not be changed: “Because there
are so many variables involved in liability issues, it would be extremely difficult if not impossible
to list in a statute. The consensus was liability issues are addressed appropriately in the present statute.”
Id.
¶ 31 We do not read this as a recommendation that comparative negligence not be applied
but as an acknowledgment that it would be next to impossible to adequately address all liability issues
in a statute. In fact, the section on liability had already been altered. In the Underground Facilities
Act as originally passed in 1973, only the excavator was liable. However, the first time the Underground
Facilities Act was amended16 in 1981, the owner was also deemed liable.17 This indicates recognition
that both parties could be at fault.
¶ 32 This recognition, combined with the references to comparative negligence and equity,
implies that the sections of the statute were to be read together and fault applied proportionately, rather
15
H.B. 2061 was a strike-everything amendment to the Underground Facilities Act that prescribed
procedures to be used for locating and marking underground lines.
16
Amended by 1981 Ariz. Sess. Laws, ch. 153.
17
No such equivalent exists in the Overhead Lines Act.
15
than one violation superseding another. Moreover, UCATA, with its comparative negligence system,
was enacted after the Underground Facilities Act and on its face was intended to apply across the board
to all types of tort actions, with a few specific exceptions, none of which is applicable to this case.
If the legislature had intended to make an exception for this type of action, we have no doubt it would
have said so when it passed the comparative negligence statute.
F. Legislative modification
¶ 33 APS argues that the legislature can eliminate or modify contributory negligence, citing
Hall,149 Ariz. at 134, 717 P.2d at 438. Hall held in part that because article XVIII, § 5 of the Arizona
Constitution provides only a procedural guarantee, the legislature is free to abolish or modify the defense
of contributory negligence. The legislature did modify the defense by adopting comparative principles
and, no doubt, could abolish it altogether. But as noted in ¶ 22, article XVIII, § 5 forbids the legislature
or courts from compelling application of the doctrine as a matter of law and requires leaving the facts
and law for the jury to apply. APS’s interpretation of the Underground Facilities Act would establish
contributory negligence of the injured excavator as a matter of law, which is exactly what article XVIII,
§ 5 prohibits.
CONCLUSION
¶ 34 For all these reasons, the court of appeals’ interpretation of the Underground Facilities
Act cannot stand. When, as in the present case, an injured but negligent excavator asserts a claim against
a negligent owner, the court may not base dismissal on what is, in reality, a question of contributory
negligence. The effect of Gunnell’s negligence in violating the Underground Facilities Act is for the
jury to consider under the principles of comparative negligence. The proper method of putting the
question to the jury is set forth by the court of appeals in Williams, 180 Ariz. at 537-38, 885 P.2d at
1102-03, and approved by us on review. See Williams II, 188 Ariz. at 260, 934 P.2d at 1352.
16
¶ 35 Nothing in this opinion addresses application of the statute in the usual situation in
which, like the Overhead Lines Act cases, the negligent excavator may be called on to indemnify the
negligent owner for the injuries sustained by the former’s employee or some other third party.
¶ 36 The court of appeals’ opinion is therefore vacated, the trial court’s judgment is reversed,
and the case is remanded to the trial court for further proceedings consistent with this opinion.
____________________________________
STANLEY G. FELDMAN, Justice
CONCURRING:
__________________________________________
CHARLES E. JONES, Chief Justice
__________________________________________
RUTH V. McGREGOR, Vice Chief Justice
__________________________________________
THOMAS A. ZLAKET, Justice (retired)
17
Gunnell v. Arizona Public Service Co.
Court: Arizona Supreme Court
Date filed: 2002-05-13
Citations: 46 P.3d 399, 202 Ariz. 388
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