PUC Tariffs Cannot Limit Electric Utility Tort Liability to Non-Customers; HVSA Notice Binds Only Contracting Parties and Triggers No-Causation Indemnity

Case: Pub. Serv. Co. of Colo. v. Outdoor Design Landscaping LLC, 2026 CO 6 (Colo. Jan. 26, 2026)
Court: Colorado Supreme Court (Gabriel, J.)
Disposition: Judgment affirmed in part and vacated in part

1. Introduction

This personal injury case arises from a contractor’s Christmas-light installation near a high-voltage overhead line. Francisco Cuevas, who owned Outdoor Design Landscaping LLC (“Outdoor Design”), fell from a ladder and suffered catastrophic injuries (including paraplegia) after a spruce tree allegedly became electrified through contact with Public Service Company of Colorado d/b/a Xcel Energy’s (“PSCo”) power line.

Cuevas sued PSCo for negligence, alleging PSCo failed to maintain the power lines and/or the tree to prevent the hazard. PSCo invoked two primary shields:

• A tariff limitation of liability in Tariff Sheet No. R87 (“Tariff Sheet R87”), which purported to limit PSCo’s liability for injuries caused by its lines when “contacted or interfered with” by trees or other non-PSCo objects (unless PSCo’s lines were “in a defective condition”).
• The High Voltage Safety Act (“HVSA”), which requires certain persons/entities to give advance notice to the utility before undertaking work that could reasonably be expected to bring people or equipment within ten feet of high-voltage overhead lines.

PSCo also filed a third-party claim against Outdoor Design seeking statutory indemnity under the HVSA because Outdoor Design did not give the required notice before proceeding with the work.

The Colorado Supreme Court addressed three core issues: (1) whether the tariff could bar Cuevas’s tort claim, (2) whether Cuevas personally was bound by HVSA notice duties, and (3) whether HVSA indemnity requires a causation analysis linking the notice violation to the injury.

2. Summary of the Opinion

3. Analysis

3.1 Precedents Cited (and How They Shaped the Decision)

A. Standards of review and interpretive method

• Kulmann v. Salazar (2022 CO 58): Used for baseline principles of constitutional/statutory interpretation—seek to effectuate intent, begin with plain language, apply as written if unambiguous.
• Elder v. Williams (2020 CO 88): Cited for the definition of ambiguity (“reasonably susceptible of multiple interpretations”).
• Rocky Mountain Expl., Inc. v. Davis Graham & Stubbs LLP (2018 CO 54): Anchors de novo review of summary judgment and the requirement that inferences and doubts be resolved against the moving party.

These cases did not drive the substantive outcomes, but they structured how the Court framed the questions: what the governing texts mean (constitution, statutes, tariff) and whether the issues could be resolved as a matter of law.

B. PUC authority, tariffs, and the common law

• City of Montrose v. Pub. Utils. Comm'n (629 P.2d 619 (Colo. 1981)): Recognized the PUC’s authority as “broad” but “not unlimited,” and emphasized the PUC’s responsibility to protect the public interest regarding utility rates and practices. The majority leveraged this “broad but bounded” concept to reject PSCo’s argument that anything affecting rates lies within the PUC’s reach.
• U S W. Commc'ns, Inc. v. City of Longmont (948 P.2d 509 (Colo. 1997)): Critical for two propositions: (1) a tariff “is not a state statute,” and (2) the Court previously cited with approval that tariffs can extinguish conflicting common-law remedies in the customer context. The majority used this to draw a sharp distinction between tariff effects on customers versus non-customers.
• Carestream Health, Inc. v. Colo. Pub. Utils. Comm'n (2017 CO 75): Provided a definition of a tariff as a publicly filed document setting rates and the “rules and regulations” governing the utility’s service.
• Shoemaker v. Mountain States Tel. & Tel. Co. (559 P.2d 721 (Colo.App. 1976)): Used through U S W. Commc'ns, Inc. to illustrate that customer tariffs may extinguish inconsistent customer common-law remedies—supporting the majority’s decision to avoid opining on customer tariff limits while refusing to extend the concept to non-customers absent authority.
• Banner Health v. Gresser (2025 CO 60M) and Vigil v. Franklin (103 P.3d 322 (Colo. 2004)): These were pivotal in framing the governing principle: to abrogate common law, the legislature must manifest intent expressly or by clear implication, and statutes derogating from common law are strictly construed. The Court analogized this restraint to the PUC’s lack of authority to abrogate non-customer common-law tort rights via tariff.

C. Persuasive authority on non-customer tariff immunity

• Tyus v. Indianapolis Power & Light Co. (134 N.E.3d 389 (Ind.Ct.App. 2019)): The majority treated this as the most persuasive analogue. It stands for the principle that absent an express or necessarily implied delegation, a utility regulator cannot “rewrite the common law of torts” to immunize a utility against negligence claims by non-customer third parties. The Colorado Supreme Court imported this logic to Colorado’s PUC context.

In contrast, the Court distinguished the pro-utility cases PSCo cited, emphasizing they involved either (a) customer-like use/consumption of service or (b) economic-loss claims tied to service interruption, rather than a non-customer’s personal injury negligence claim:

• US Airways, Inc. v. Qwest Corp. (361 P.3d 942 (Ariz.Ct.App. 2015)), aff'd, 385 P.3d 412 (Ariz. 2016)
• Pac. Bell v. Colich (244 Cal.Rptr. 714 (Cal.Ct.App. 1988))
• CenterPoint Energy Res. Corp. v. Ramirez (640 S.W.3d 205 (Tex. 2022))

D. HVSA “contracting party” interpretation

• Mladjan v. Pub. Serv. Co. of Colo. (797 P.2d 1299 (Colo.App. 1990)): Directly reinforced the Court’s reading that HVSA notice duties fall on the “party contracting” to perform the work, not an employee of that party. The Court used Mladjan to confirm that Cuevas (not the contracting party) was not a statutory “person” obligated to notify PSCo.

E. The dissent’s authorities (and the doctrinal fault line)

Although not controlling, Chief Justice Marquez’s dissent is a roadmap for future litigation and legislative debate over the PUC’s constitutional status under Article XXV and the scope of tariff power. The dissent relied on:

• City of Montrose v. Pub. Utils. Comm'n (732 P.2d 1181 (Colo. 1987)) (plenary authority subject only to legislative restriction)
• Aspen Airways, Inc. v. Rocky Mountain Airways, Inc. (584 P.2d 629 (Colo. 1978)) (PUC has as much authority as the legislature previously had over utilities regulation)
• Mountain States Legal Foundation v. Public Utilities Commission (590 P.2d 495 (Colo. 1979)) (PUC authority can be restricted by statute; otherwise broad)
• W. Union Tel. Co. v. Esteve Bros. & Co. (256 U.S. 566 (1921)) (liability limitation as “an inherent part of the rate”)

The dissent’s core move is to treat Article XXV as a plenary constitutional delegation that does not require an express statutory grant to validate non-customer liability limits—placing the burden on opponents to show an express legislative restriction. The majority instead treated non-customer tort-right abrogation as requiring a clear, affirmative authorization (express or necessarily implied) before the PUC may do it.

3.2 Legal Reasoning

A. Tariffs and the limits of PUC power over non-customer tort claims

The Court’s central innovation is institutional: it separates (i) the PUC’s broad domain over “facilities, service and rates and charges” from (ii) the power to extinguish or limit common-law tort claims of people who are not customers and are not using the utility’s service. The Court’s reasoning proceeds in four steps:

1. Assumption without decision on tariff text: The Court avoided deciding whether Tariff Sheet R87’s word “persons” includes non-customers. This is why it vacated the court of appeals’ “by its terms” narrowing of the tariff—because the Supreme Court did not rely on that ground.
2. Tariff ≠ statute: By emphasizing that “A tariff is not a state statute” (U S W. Commc'ns, Inc. v. City of Longmont), the Court framed tariffs as regulatory instruments that cannot, on their own, accomplish what only the legislature can do: abrogate common-law rights absent express or clearly implied authorization.
3. No express or necessarily implied delegation to bar non-customer tort claims: The Court read Article XXV and section 40-3-102 as broad but not as silently authorizing the PUC to eliminate non-customer tort remedies. This conclusion was reinforced by the common-law abrogation principle stated in Banner Health v. Gresser and Vigil v. Franklin.
4. Limiting principle concern: The Court rejected PSCo’s “everything affects rates” theory. If accepted, it would imply the PUC could grant utilities sweeping immunity from tort liability simply by labeling immunity as rate-relevant. The Court refused a reading that would render the PUC’s authority “essentially limitless.”

Notably, the majority explicitly left open whether the PUC may approve customer-facing tariff liability limitations; the holding is confined to non-customers like Cuevas.

B. HVSA notice duty is confined to the contracting party

The HVSA analysis is text-driven:

• Section 9-2.5-101(4) defines “[p]erson or business entity” as “a party contracting to perform” the relevant work.
• Section 9-2.5-102(1) prohibits the “person or business entity” (so defined) from performing or requiring others to perform work that could reasonably be expected to come within ten feet of a high voltage overhead line.
• Section 9-2.5-103(1) permits the work only if the contracting party gives notice and makes “satisfactory mutual arrangements” with the utility.

Cuevas was an individual worker and owner, but Outdoor Design (the company) was the party that contracted with the homeowner. Under the statute’s own definition, Cuevas individually was not the “person or business entity,” and the Court refused to expand the definition to employees or agents because the legislature showed it knows how to include “agent or employee” when it wants to.

C. HVSA indemnity contains no separate causation element

Section 9-2.5-104(2) triggers liability to the utility when “a violation of this article results in physical or electrical contact” with a high voltage line, imposing liability for the utility’s incurred liability “due to the contact.” Outdoor Design argued that this language requires proof the notice violation caused the injury.

The Court rejected that framing because the HVSA’s structure makes “notice + mutual arrangements” a precondition to doing the work at all. If notice is not given, the work is statutorily prohibited; therefore, when prohibited work proceeds and contact occurs, the violation is treated as the operative cause in the statutory scheme. On that logic, no additional, free-standing causation inquiry is required.

3.3 Impact

A. Tort exposure of electric utilities to the public (non-customers)

The most consequential rule is that the PUC cannot, through tariff approval, eliminate or limit an electric utility’s tort liability to non-customers for personal injuries caused by the utility’s negligence. Practically:

• Non-customers retain common-law negligence claims notwithstanding broadly worded “persons” clauses in tariffs.
• Utility tariff drafting may be less determinative in personal-injury litigation involving members of the public, contractors, and bystanders who are not consuming utility service.
• Regulatory strategy shifts to the legislature: if utilities seek non-customer liability protections, this opinion suggests the proper forum is statutory authorization, not tariff language.

B. Contractor allocation of risk under the HVSA

The HVSA portion strengthens the statute as a risk-allocation tool:

• Notice obligation clarity: The duty attaches to the contracting entity, which simplifies compliance expectations and litigation over who had the statutory duty.
• Indemnity without causation fights: Once a notice violation and contact are established, indemnity exposure is difficult to avoid by arguing the accident would have happened anyway.

At the same time, employees of contractors (including owners acting as workers) are not personally subject to HVSA notice duties when they are not the “contracting party,” which preserves their ability to sue utilities (subject to ordinary tort defenses).

C. Institutional implications: Article XXV debate is now sharpened

The dissent frames Article XXV as granting the PUC “all power” (plenary) unless the legislature restricts it. The majority effectively requires a clear authorization before a tariff can displace non-customer common-law tort rights. This sets up:

• Future litigation testing how far the “non-customer” principle extends (e.g., guests, tenants, service users, “consumers” of service, and other borderline statuses).
• Legislative pressure if utilities and stakeholders seek clarity on whether and when non-customer tariff protections can exist.

4. Complex Concepts Simplified

• Tariff: A utility’s publicly filed rulebook of rates and service terms approved by the PUC. It is regulatory, but (as the Court stressed) it is not a statute enacted by the legislature.
• Limitation of liability clause: A provision that tries to restrict when and how much the utility can be held responsible for harms. Here, PSCo’s tariff tried to limit liability for injuries caused by lines contacted/interfered with by trees or other objects unless the lines were defective.
• Abrogation of the common law: Eliminating or shrinking traditional judge-made rights (like negligence claims). Colorado courts require a clear legislative signal (express or by clear implication) before concluding common-law rights were taken away.
• HVSA notice requirement (ten-foot rule): If the work could reasonably be expected to bring workers or equipment within ten feet of high-voltage overhead lines, the contracting party must notify the utility and make safety arrangements before proceeding.
• Indemnity under HVSA: A statutory shifting of financial responsibility: when a contractor violates the HVSA and contact occurs, the contractor must reimburse the utility for liability the utility incurs “due to the contact.”
• The Court held PSCo need not prove that the lack of notice specifically caused the accident; in the statutory design, the absence of notice is treated as the decisive violation that makes the work unlawful to begin with.

5. Conclusion

Pub. Serv. Co. of Colo. v. Outdoor Design Landscaping LLC delivers a three-part doctrinal clarification with significant practical effects: (1) the PUC cannot approve tariffs that limit an electric utility’s tort liability to non-customers absent clear authorization; (2) HVSA notice duties fall on the contracting party, not non-contracting employees; and (3) HVSA indemnity under section 9-2.5-104(2) does not require a separate causation showing once a violation and contact with the line occur.

The decision preserves non-customer access to common-law negligence remedies against utilities while simultaneously reinforcing the HVSA’s strict compliance-and-indemnity framework for contractors who choose to work near high-voltage lines without first coordinating safety arrangements with the utility.