Gunnell v. Arizona Public Service Co

In Gunnell v. Arizona Public Service Co., 202 Ariz. 388, 46 P. 3d 399 (2002), an excavator who was injured through both his own and the defendant utility's negligence sought to recover damages under Arizona's Underground Facilities Act, A.R.S. 40-360.21 through 40-360.32. The trial court granted summary judgment and Division One of this court affirmed, finding that Gunnell's own negligence prevented him from recovering any damages. The Arizona Supreme Courtreversed, holding that, although both parties had, in fact, been negligent, the Act created a "comparative negligence regime" that required the issue to be submitted to a jury. 202 Ariz. 388, P 22, 46 P. 3d at 405. Stating that "the legislature cannot 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," the court made clear that the constitution requires such issues to be decided by a jury. Id. P 24.