Failure to Investigate Possible Existence of Underground Facility
In Sedona Self Realization Group v. Sun-Up Water Co., 123 Ariz. 168, 598 P.2d 987 (1979), the statutes "were designed to provide a cause of action against those people who carelessly or negligently excavate in an easement," and that "if a person obtains the necessary information and excavates in a careful and prudent manner, he can then escape liability for damages." Id. at 170, 598 P.2d at 989.
The Sedona court was correct when it reasoned that sections 40-360.23 and 40-360.28 predicate liability on the failure of a party to investigate once it is placed on notice of the possible existence of an underground facility.
Section 40-360.26(A) provides that any person who damages an underground facility because he fails "to obtain information as to its location, . . . to take measures for the protection of the facilities or . . . to excavate in a careful and prudent manner" is liable to the owner of the facility.
The liability provided for in this section is in addition to, not instead of, the liability imposed in section 40-360.28(B) for physical contact with an underground facility caused by violation of the statute.