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Cuevas v. Public Service Co. of Colorado.

2023 COA 64. No. 22CA0301. Public Utilities—Tariff Sheet No. R87 of Electric Tariff—High-Voltage Safety Act Violation—Attorney Fees and Costs.

July 13, 2023

Cuevas was a co-owner and employee of Outdoor Design Landscaping, LLC (Outdoor Design). Cuevas was electrically shocked while hanging Christmas lights on his customer Anderson’s tree, which was within 26 inches of a high-voltage overhead power line. The shock knocked Cuevas off his ladder and to the ground, fracturing his spine and causing permanent paralysis. Cuevas brought a personal injury action against Public Service Co. of Colorado, d/b/a Xcel Energy (Xcel), for its alleged failure to maintain the vegetation near its power line, and against Anderson based on her alleged failure to warn of the dangerous condition created by the proximity between the tree and the line. Xcel moved to dismiss the case based on Tariff Sheet No. R87 (R87) of the Xcel Electric Tariff, Colo. PUC No. 7, and the High Voltage Safety Act (HVSA), CRS §§ 9-2.5-101 to -106. The district court denied the motion. Xcel then filed an answer and third-party complaint against Outdoor Design, arguing that its failure to notify Xcel in advance of the work violated the HVSA and that Outdoor Design was obligated to reimburse Xcel for liabilities resulting from Cuevas’s injuries pursuant to the HVSA’s indemnification provision. Xcel moved for summary judgment against Cuevas under R87 and the HVSA, and against Outdoor Design under the HVSA. Outdoor Design filed a cross-motion for summary judgment against Xcel, contending the undisputed facts demonstrated that no equipment or other materials it used came within 10 feet of the power line at the time of the incident, and that there was no causal link between the alleged HVSA violation and Cuevas’s injuries. The district court granted Xcel’s motion for summary judgment against Cuevas, concluding that R87 barred his claim as a matter of law. The court rejected Xcel’s argument that CRS § 9- 2.5-102(1) barred Cuevas’s claim but granted summary judgment for Xcel against Outdoor Design based on CRS § 9-2.5-104(2). The court also denied Xcel’s claim for costs and attorney fees under the HVSA but awarded Xcel its costs under CRCP 54(d).

On appeal, Cuevas argued that R87’s plain language serves to define the relative liability between Xcel and its customers, so it should not be interpreted to shield Xcel from claims brought by third parties injured because of the proximity of Xcel’s lines to trees or other objects. R87 provides that Xcel will not be held liable for property damage or personal injuries unless its lines and equipment are in a defective condition. But R87 does not express a clear intent to abrogate the common law heightened duty of care imposed on electrical utilities to protect the public from the dangers of electricity, and an unreasonable risk of danger may arise when electrical utilities negligently design, construct, or maintain power lines. The court of appeals concluded that the General Assembly has not granted Xcel or the Colorado Public Utilities Commission the authority to abrogate the common law duty that electric companies owe to persons who are not customers or using a customer’s electric service. Accordingly, the district court erred in holding that R87’s plain language eliminated any duty Xcel owed to Cuevas unless the line at issue was in a defective condition.

Xcel appealed the district court’s denial of its summary judgment motion as to Cuevas, arguing that the plain language of CRS § 9-2.5-102(1) bars Cuevas’s claim because he did not contact Xcel before working on the tree and should have reasonably expected that his work would require him to come within 10 feet of Xcel’s line. Section 9-2.5-102(1) requires advance notice to utility companies when people working around electrical lines could reasonably expect that themselves, their equipment, or their tools could come within 10 feet of the utility’s electrical lines. This notice allows the utility company to arrange for guarding the line against accidental contact. The HVSA also mandates that no work can be performed until the utility gives notice that the clearance is completed. Under CRS § 9-2.5-104(2), violating this advance notice requirement shifts liability regardless of whether the utility was negligent. HVSA expressly limits the scope of the notification requirement to the party that contracts to perform the work that is anticipated to come within 10 feet of the line. Here, the undisputed facts establish that Outdoor Design, not Cuevas, was the contracting party. Accordingly, Cuevas had no obligation to provide notice to Xcel, and the lack of such notice does not bar his claim.

Outdoor Design appealed the summary judgment in favor of Xcel. It contended that the district court erred by granting Xcel’s third-party indemnification claim because disputed issues of material fact remain that do not support the district court’s conclusion that Outdoor Design should have reasonably expected that workers or equipment could come within 10 feet of the line, and neither does the undisputed fact that the line was approximately 26 inches from the tree. Even drawing all inferences in Outdoor Design’s favor, the undisputed evidence established that (1) Outdoor Design did not provide notice to Xcel before starting its work; (2) Cuevas was employed by Outdoor Design and acted on its behalf; (3) the tree was within 26 inches of Xcel’s line; (4) Anderson expected that Outdoor Design would provide lights for the entire tree, as it had for at least four years prior to 2017; and (5) consistent with Anderson’s expectations, Outdoor Design’s employees, ladders, and extension tools were used to hang lights around the entire tree the day after Cuevas’s electrocution. Based on these facts, the district court properly determined that Outdoor Design violated CRS § 9-2.5-102(1), thus triggering the indemnification provisions of CRS § 9-2.5-104.

Cuevas and Outdoor Design also appealed the district court’s order holding them jointly and severally liable for Xcel’s costs pursuant to CRCP 54(d). Based on the court’s reversal of the judgment against Cuevas, the factual predicate for the district court’s conclusion that Xcel prevailed against Cuevas no longer applies, and the cost award against him must be vacated. Accordingly, Cuevas’s claim against Xcel remains viable, and the extent to which Xcel may or may not prevail on its indemnification claim against Outdoor Design is uncertain. Therefore, the cost award against Outdoor Design must be reversed and the issue of costs be reserved until a final judgment, if any, is entered in this case.

Xcel also appealed the district court’s denial of its claim for attorney fees. However, the plain language of CRS § 9-2.5-104(2) does not provide a basis for an attorney fees award.

The entry of summary judgment against Cuevas based on R87 was reversed. The denial of Xcel’s motion for summary judgment against Cuevas under the HVSA and the entry of summary judgment against Outdoor Design under the HVSA were affirmed. The award of costs against Cuevas and Outdoor Design was vacated. The denial of Xcel’s claim for attorney fees was affirmed. The case was remanded for further proceedings.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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