Judge rules against APS in negligence case

PHOENIX – Arizona utilities can’t legally shield themselves from being sued when their negligence kills or harms people or destroys property, the state Court of Appeals ruled Tuesday.

An attorney for Arizona Public Service had argued that its tariffs – the rules that govern its relationship with customers – shield it from ordinary negligence. And that, said attorney David Gaona, precluded Chao Xie and Yit Kiue Szeto from seeking damages from APS after a fire allegedly caused by negligent maintenance of power lines, destroyed a home they owned in Maricopa County.

That same tariff, Gaona argued, also precluded a lawsuit by Lydia Briones who occupied the home.

But Appellate Judge Paul McMurdie, writing for the unanimous threejudge panel, said that misreads the law.

He said utilities can protect themselves against incidental damage, such as economic losses from power interruptions and even damage to equipment due to voltage fluctuations. But McMurdie said none of that shields a utility from what happens when its negligence in maintaining the electrical distribution system actually does what is alleged to have happened here: cause a fire that burns down a house.

Potentially more significant, the judge noted that the Arizona Constitution contains a specific provision guaranteeing the right to recover damages and spelling out that the amount recovered “shall not be subject to any statutory limitation.’’ That is known as the “anti-abrogation’’ clause.

“A statute that effectively deprives a claiming of the ability to bring an action protected by the anti-abrogation clause violates the constitution,’’ McMurdie wrote. And in this case, the judge said, the company’s tariffs, which had been approved by the Arizona Corporation Commission, are the functional equivalent of a statute.

An APS spokeswoman said the company was reviewing the ruling and had no immediate comment.