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PREMISES LIABILITY UPDATE
By Amos Pettis
Military Highway Water Supply Corp. v. Morin, __ S.W.3d __, 48 Tex. Sup. Ct. J. 364 (Tex. 2005) (per curium)
Duty Owed By Possessor Of Land, Allowing Excavation To Remain On Land,
To One Deviating From Highway.
A public utility company dug a hole to install a water meter on its utility easement over 20 feet from the edge of a farm-to-market road. A vehicle traveling 50-55 mph struck a horse, crossed the highway, hit the hole, and turned over, killing the driver and a passenger. The family members sued the utility company for wrongful death and survivorship. The jury found the Defendant 52% negligent, which was affirmed by the Corpus Christi Court of Appeals. 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. The Supreme Court held that traveling 250' from a lane of traffic into a pit is not in the ordinary course of travel, so the utility company owed the Plaintiffs no duty and was not liable.
Pierce v. Holiday, __ S.W.3d __, LEXIS 10448 (Tex.App.--Texarkana 2005, no pet. h.)
Plaintiff failed to prove landowner had knowledge of hole in hayfield.
Plaintiff, an agricultural employee, sued his employer (a worker's compensation non-subscriber) under a premises liability theory for injuries allegedly sustained when he stepped in a hole while cutting hay on the Defendant's farm. The trial court granted traditional and no-evidence summary judgment for Defendant, and the no-evidence portion was affirmed by the Court of Appeals. The Court held that Plaintiff failed to prove that Defendant did not know nor should have known of the specific hole the Plaintiff stepped in (although he knew there occasionally were holes in the field) and it was equally plausible the hole may have been caused by gophers or a recent rain or may have been hidden by hay. However, summary judgment was reversed on some of Plaintiff's claims that the Defendant failed to attack in its motion for summary judgment.
Texas Dep't of Transportation and Deavers, Inc. v. Fontenot, 151 S.W.3d 753 (Tex.App.--Beaumont 2004, pet. filed Feb. 16, 2005)
Plaintiff failed to prove liability for death following water on interstate highway.
Following a hard rain, a motorist on Interstate 10 hit a large puddle of water and lost control of his vehicle, leaving the road and fatally striking a tree. The deceased motorist's family members filed suit alleging that the injuries were caused by the failure of a highway contractor and the state highway department to warn motorists of water on the road. The jury found in favor of the Plaintiffs and apportioned negligence 55% to the state, 30% to the contractor, and 15% to the deceased motorist. The Court of Appeals reversed and rendered judgment for the contractor, holding that the contractor owed the Plaintiffs no duty for a condition it did not create and that was outside of its construction zone (although there were already warning signs to slow traffic for construction ahead). The Court reversed and remanded for the state, holding that standing water after a hard rain was not an unexpected or unusual road hazard and that, while there was a scintilla of evidence of knowledge, there was factually insufficient evidence that the state know of the dangerous condition.
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