 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Military Highway Water Supply Corp. v. Francisca Morin1/21/2005
JUSTICE GREEN did not participate in the decision.
A possessor of land who allows an excavation to remain on the land owes a duty to persons who encounter the excavation after (1) traveling with reasonable care on the highway and (2) foreseeably deviating from the highway in the ordinary course of travel.
RESTATEMENT (SECOND) OF TORTS § 368 (1965). In City of McAllen v. De La Garza, 898 S.W.2d 809, 811 (Tex. 1995), we concluded that a traveler who deviates from the highway is not "in the ordinary course of travel" unless the deviation is a normal incident of travel. The deviation in that case -- in which the car traveled approximately 250 feet from the lane of travel before coming to rest in the City's caliche pit located within ten feet of the roadway -- was not in the ordinary course of travel. Id. at 812. In this case, the court of appeals relied on De La Garza to conclude that the deviation occurred in the ordinary course of travel. 114 S.W.3d 728, 734-36. We conclude, however, that the court's opinion conflicts with our holding in De La Garza and that Military Highway owed no duty to the respondents. We accordingly reverse the court of appeals' judgment and render judgment that the respondents take nothing.
This is a wrongful-death and survivorship action stemming from an automobile accident that occurred on and adjacent to farm-to-market road 732 ("FM 732") in Cameron County. FM 732 is a two-lane road with a posted speed limit of fifty-five miles per hour. Because Cameron County has no local stock laws in place, livestock can roam freely near the vehicular traffic along FM 732. See TEX. CONST. art. XVI, § 23 (delegating to Legislature the power to pass laws regulating livestock); TEX. AGRIC. CODE §§ 143.024 (permitting elections to adopt local stock laws), 143.101 (excluding numbered farm-to-market roads from definition of "highway"), 143.102 (prohibiting owners or caretakers from knowingly allowing animals to traverse or roam at large on right-of-way of "highway"); see also Gibbs v. Jackson, 990 S.W.2d 745, 747-50 (Tex. 1999) (discussing duties regarding restraint of livestock).
On June 3, 1996, Military Highway Water Supply Corporation ("Military Highway"), a nonprofit public utility, dug a hole to install a water meter on its utility easement. The hole was approximately three feet in diameter and was located more than twenty feet from the edge of FM 732. Military Highway's manager testified that, because the Texas Department of Transportation also had an easement over the area, Military Highway was required to comply with the Department's regulations. Those regulations and Military Highway's corresponding policies required Military Highway to fill the excavation after completing the installation. Military Highway, however, did not fill in the hole. In July of 1996, a neighboring landowner notified Military Highway that the excavation had not been filled, but the public utility took no further action.
On the morning of August 1, 1996, Mercedes Melendez Morin ("Morin") was driving his car northbound approximately fifty to fifty-five miles per hour down FM 732. Ausencio Bautista Ramos ("Bautista") was a passenger in the front seat, and two other passengers were seated in the back. A horse crossed the road, and the vehicle struck the horse. One of the back-seat passengers saw the horse before the impact and had time to duck behind the front seat prior to the collision. Military Highway's expert testified that, under the circumstances, Morin had about two and a half seconds to react to the horse; however, it is undisputed that Morin never applied the brakes and did not swerve to avoid the animal. After striking the horse, the vehicle veered to the l
Page 1 2 3 4 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|