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Click here for the full text of this decision FACTS:Military Highway Water Supply Corp., a nonprofit public utility, dug a hole to install a water meter on its utility easement. Mercedes Melendez Morin was driving his car 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. After traveling approximately 535 feet from the point of impact, the car ultimately reached Military Highway’s open excavation. the car’s right-front wheel climbed a mound of dirt piled next to the hole, and the left-front wheel fell into the hole. The car then rolled to the left, flipped, and landed upside down against a tree 633.6 feet from the point of the initial impact with the horse. Several family members and the estates of Morin and Bautista sued Military Highway for negligence. After a trial on the merits, the jury found that Military Highway and Morin were respectively 52% and 48% responsible and awarded damages to the Morin and Bautista plaintiffs. The court of appeals held that Military Highway owed a duty to Morin and Bautista, and that there was legally sufficient evidence to support the foreseeability finding. Military Highway petitioned this court for review. HOLDING:Reversed and rendered that respondents take nothing. 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 (Tex. 1995), the Texas Supreme Court 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. In this case, the court of appeals relied on De La Garza to conclude that the deviation occurred in the ordinary course of travel. The question under the facts presented in this case, the court says, is whether Morin and Bautista’s deviation from FM 732, triggered by hitting a horse while traveling fifty to fifty-five miles per hour, was a normal incident of travel � an occurrence that Military Highway could have reasonably anticipated. The excavation left by Military Highway was more than 20 feet from the edge of the southbound lane of FM 732. Before reaching the excavation, Morin and Bautista traveled over 500 feet from the point of impact with the horse, careening from the northbound lane to the southbound lane, across a 16-foot unimproved shoulder, and onto the abutting land. This is a greater deviation from normal travel than the deviation in De La Garza, in which the plaintiff came to rest in an excavation located within ten feet of the roadway, after traveling approximately 250 feet from the point where the driver fell asleep at the wheel. Under the facts of this case, the court of appeals’ characterization of the deviation as a normal incident of travel conflicts with the holding in De La Garza and several of the cases cited therein, the court decides As in De La Garza, the court does not reach whether Morin and Bautista’s deviation was foreseeable because, foreseeable or not, Military Highway owed no duty under the circumstances of this case. OPINION:Per curiam.

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