






NUMBER 13-99-532-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS

 
CORPUS CHRISTI - EDINBURG 




MILITARY HIGHWAY WATER SUPPLY CORPORATION,	Appellant,


v.


FRANCISCA MORIN, ET AL.,	Appellees.



On appeal from the 93rd District Court
of Hidalgo County, Texas.




O P I N I O N


Before Justices Hinojosa, Castillo, and Dorsey (1)

Opinion by Justice Castillo


 This is a wrongful-death and survivorship action.  Appellant Military Highway
Water Supply Corporation ("Military Highway") challenges a jury verdict and judgment
in favor of the estates and survivors of Mercedes Melendez Morin ("Morin") and
Ausencio Bautista Ramos ("Bautista"). (2)  Military Highway brings four issues for our
review, claiming:  (1) it owed no duty to Morin and Bautista; (2) the evidence is legally
insufficient to support the proximate-cause foreseeability element of Morin and
Bautista's negligence claim; (3) the trial court improperly awarded one appellee
$60,000 over the damages found by the jury; and (4) the trial court did not apply a
stipulated statutory limitation on the total damages awarded to Bautista's estate and
survivors.  We suggest remittitur. If the remittitur is filed, we reverse and render in
part, modify the judgment, and affirm in part as modified.  If the remittitur is not filed,
we reverse and render judgment as to one appellee and reverse and remand the
remainder of the case.  
I.  BACKGROUND

	Military Highway is a non-profit public utility.  It holds a utility easement in
Cameron County adjacent to Texas farm-to-market road 732 ("FM 732").  The
easement gives Military Highway the "right to operate, inspect, repair, maintain,
replace and remove utility pipeline(s)."
 Near Military Highway's utility easement, FM 732 is a two-lane highway with
a posted speed limit of fifty-five miles per hour.  The parties agree that Cameron
County has no local stock law in place. (3)  Livestock freely roam along FM 732.  
	Military Highway's internal procedures for maintaining its utility easements
reflect regulations promulgated by the Texas Department of Transportation. (4)  Under
certain circumstances, those regulations and procedures require Military Highway to
fill excavations in its easements.  On June 3, 1996, Military Highway dug an
excavation to install a water meter on its easement.  The excavation was within thirty
feet of FM 732.  After completing the installation, Military Highway did not fill in the
resulting three-foot-diameter hole.  In July of 1996, a neighboring landowner notified
Military Highway the hole had not been filled.  Military Highway took no action.  
	On the morning of August 1, 1996, Morin was driving his car down FM 732. 
Bautista was riding in the front passenger seat.  Two other passengers were in the
back seat.  A horse crossed the highway.  The car struck the animal.  The horse
smashed through the windshield.  The car careened across the oncoming lane of
traffic.  It left the pavement on the opposite side of the highway.  Over five hundred
feet from where it collided with the horse, the car reached Military Highway's open
excavation.  The car's right front wheel climbed a mound of dirt piled next to the hole. 
Its left front wheel dropped in the hole.  The car vaulted through the air and flipped. 
Rolling to its left, the car slammed to the ground.  It ended up on its roof and crashed
into a tree.  Mere seconds had elapsed since horse and car collided.  
	Morin and Bautista died.  The two back-seat passengers survived.  
II.  ISSUES ON APPEAL

	In its first issue, Military Highway asserts it owed no duty to Morin and Bautista
as a matter of law.  In issue two, Military Highway challenges the legal sufficiency of
the evidence to sustain the proximate-cause foreseeability element of the appellees'
negligence cause of action.  In its third issue, Military Highway alternatively contends
the judgment improperly awarded Maria Del Pilar Mota $385,000, when the jury found
her damages to be $325,000.  Finally and also in the alternative, Military Highway
complains in its fourth issue the trial court did not apply a stipulated damages cap
pursuant to section 84.006 of the civil practice and remedies code.  See  Tex. Civ.
Prac. & Rem. Code Ann. § 84.006 (Vernon 1997).  It argues that the damages the
judgment awarded to Bautista's estate and survivors should be reduced from a total
of $630,710, including pre-judgment interest, to $500,000.  We first turn to the law
of negligence.  
III.  COMMON-LAW NEGLIGENCE

	Texas law requires proof of three familiar elements to sustain a cause of action
for negligence:  (1) a legal duty owed by one party to another; (2) a breach of that
duty; and (3) damages proximately caused by the breach.  D. Houston, Inc. v.
Love, 92 S.W.3d 450, 454 (Tex. 2002).  Proximate cause has two components:
(1) cause in fact; and (2) foreseeability.  Doe v. Boys Clubs of Greater Dallas,
Inc., 907 S.W.2d 472, 477 (Tex. 1995).  Military Highway does not claim on appeal
it did not breach any duty it owed to Morin and Bautista.  Nor does it challenge cause
in fact.  Rather, it focuses its appeal on duty and foreseeability.  In its first issue,
Military Highway argues it owed no duty to Morin and Bautista because:  (1) their
diversion from the highway was not in the ordinary course of travel; and (2) the
accident in which Morin and Bautista died was not foreseeable.  
 A.  Duty

1.  The Standard of Review

	The duty one party owes another is a question of law.  City of McAllen v. De
La Garza, 898 S.W.2d 809, 810 (Tex. 1995).  A trial court decides the duty question
from the particular facts surrounding the event.  Id.  We review de novo the trial
court's application of the law to the facts in determining duty.  El Paso Natural Gas Co.
v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999).  Duty is a threshold inquiry. 
Thapar v. Zezulka, 994 S.W.2d 635, 637 (Tex. 1999).  The law imposes no
negligence liability on a party who owes no duty of care to the claimant.  Id.  
2.  The Undisputed Facts

	Military Highway contracted to provide water services to property adjacent to
FM 732, a farm-to-market road in an open-range county with a posted speed limit
of fifty-five miles per hour.  Military Highway held an easement on the property to
inspect, repair, and maintain utility pipelines.  In the exercise of its public utility
function, Military Highway entered the easement and installed a water meter.  The
installation left an open excavation within thirty feet of FM 732.  At the time of the
accident, Military Highway had actual knowledge of the open excavation.  Government
regulations as well as its own internal procedures required it to fill the hole.  It did not. 
Nor did the utility explain its failure to do so.  
3.  Military Highway's Duty of Care

 a.  The Duty of Care Imposed on Public Utilities

	Military Highway is a non-profit "retail public utility."  See Tex. Water Code
Ann. § 13.002(19) (Vernon 2000).  To permit them to better serve the public, Texas
law long has accorded special privileges and powers to public utilities.  See Lone Star
Gas Co. v. Mun. Gas Co., 3 S.W.2d 790, 792 (Tex. 1928).  These special rights
include the power to "acquire land, an interest in land, materials, waste grounds,
easements, rights-of-way, equipment, contract or permit rights or interests, and other
property, real or personal, considered necessary for the purpose of accomplishing any
one or more of the district's or water supply corporation's purposes."  Tex. Water
Code Ann. § 49.218 (Vernon Supp. 2003).  
	The privileges enjoyed by public utilities carry with them duties and obligations
consistent with the purposes of their creation.  See Lone Star Gas Co., 3 S.W.2d
at 792.  A public utility has a duty to exercise ordinary and reasonable care in
performing its functions.  See First Assembly of God, Inc. v. Tex. Utils. Elec.
Co., 52 S.W.3d 482, 491 (Tex. App.-Dallas 2001, no pet.).  The degree of care is
commensurate with the danger.  Id.  The commensurate-with-the-danger standard
does not impose a duty higher than that of ordinary care.  Id. at 491-92.  Rather, it
more fully defines what constitutes ordinary care under the facts presented.  Id.  Thus,
in performing its functions, a public utility must use reasonable care and prudence to
prevent injury at places where others have the right to go for work, business, or
pleasure.  See Tex. Utils. Elec. Co. v. Gold Kist, Inc., 817 S.W.2d 749, 752 (Tex.
App.-Eastland 1991), rev'd on other grounds, 830 S.W.2d 91 (Tex. 1992).  We
conclude that Military Highway, as a public utility, owed a general duty of care to the
public in performing its functions.  Id. at 752.  
b.  The Duty of Care Imposed on

Possessors of Property Adjacent to a Road


(1)  The General Duty Owed to Travelers

	In addition to a general duty of care in performing its public utility functions,
Texas law imposes a second duty on Military Highway with regard to excavations on
easements adjacent to roads:  
	A possessor of land who creates or permits to remain thereon an
excavation or other artificial condition so near an existing highway that
he realizes or should realize that it involves an unreasonable risk to others
accidentally brought into contact with such condition while traveling with
reasonable care upon the highway, is subject to liability for physical harm
thereby caused to persons who

		(a)	are traveling on the highway, or 

		(b)	foreseeably deviate from it in the ordinary course of travel.  
De La Garza, 898 S.W.2d at 811 (quoting Restatement (Second) of Torts, § 368);
see Alamo Nat'l Bank v. Kraus, 616 S.W.2d 908, 911 n.3 (Tex. 1981).  
	The hole was less than thirty feet from FM 732.  Government regulations and
the utility's own procedures anticipated that vehicles might leave the highway and
accidentally encounter the excavation.  Accordingly, we find that Military Highway
owed a specific duty of care to travelers on FM 732 to fill the hole left by the
excavation in its easement.  See De La Garza, 898 S.W.2d at 811.  
	We next decide if Morin and Bautista belonged to the class of persons to whom
Military Highway owed that specific duty.  See Tex. Home Mgmt. v.
Peavy, 89  S.W.3d  30, 38-39 (Tex. 2002) (discussing tort duty of care owed by
operator of half-way house to class of individuals).  Military Highway contends they
did not, arguing that Morin and Bautista's deviation from the highway after striking the
horse was not foreseeably in the ordinary course of travel.    
(2)  Limitation on the Scope of Section 368:

the "Ordinary Course of Travel" Requirement


	The possessor of excavated land adjacent to a road owes a duty of care to
motorists who encounter the excavation after:  (1) traveling with reasonable care on
the road; and (2) foreseeably deviating from the road in the ordinary course of travel. 
Id.  A traveler is not "in the ordinary course of travel" unless the traveler's deviation
from the road is a normal incident of travel.  Id.  Accordingly, a traveler whose
deviation from the road is not one a possessor of property adjacent to the road
reasonably could anticipate is not "in the ordinary course of travel."  Id.  Similarly, a
traveler who intentionally leaves the road for a purpose not reasonably connected with
travel is not "in the ordinary course of travel."  Id. 
	Military Highway urges that Morin and Bautista's deviation from the highway
after hitting the horse was not one it reasonably could anticipate.  It follows, Military
Highway argues, that Morin and Bautista were not engaged "in the ordinary course of
travel" when they left the highway.  Accordingly, the utility concludes, the two men
did not belong to the class of persons to whom it owed a duty to fill the excavation
on its easement.  
	A number of courts have interpreted section 368 in deciding if deviation from
a road was "in the ordinary course of travel."  See, e.g., id.  at 811-12 (and cited
cases).  Negligent or unlawful operation of a vehicle is not "in the ordinary course of
travel."  See id. at 811 (holding that passenger in vehicle that veered
off road after driver fell asleep or passed out not in "ordinary course of
travel" when driver had .11 blood-alcohol level); Gorrell v. Tex.
Utils. Elec. Co., 915 S.W.2d 55, 60 (Tex. App.-Fort Worth 1995), writ
denied, 954 S.W.2d 767 (Tex. 1997) (per curiam)  (refusing to apply section 368 to
extend tort duty to inattentive driver who struck light pole after failing to brake); see
also Cooper v. Unimin Corp., 639 F. Supp. 1208, 1215 (D. Idaho 1986) (driver's
deviation from road to relieve himself not reasonably connected with travel); Collier v.
Redbones Tavern & Rest., Inc., 601 F. Supp. 927, 930 (D. N.H. 1985) (driver was
intoxicated and speeding); Jacque by & through Dyer v. Pub. Serv.
Co., 890 P.2d 138, 139 (Colo. Ct. App. 1994) (driver was intoxicated); Battisfore v.
Moraites, 541 N.E.2d 1376, 1382 (Ill. App. Ct. [2d Dist.] 1989) (driver was speeding
through sharp curve in excess of posted limit).  Finally, in a case similar to this one,
the Connecticut Supreme Court held that a passenger in a pickup truck was not "in the
ordinary course of travel" when the truck's intoxicated driver left the road, drove up a
dirt mound, and overturned.  Soares v. George A. Tomasso Constr.
Corp., 784 A.2d 1041, 1046 (Conn. 2001).  In each of these cases, some culpability
attached to the driver, a factor that removed the claimant from the class of persons
owed a duty by the possessor of property adjacent to the road.  
	Military Highway introduced evidence at trial, through expert accident-reconstruction testimony, that Morin neither swerved nor braked before hitting the
horse.  However, the utility introduced no evidence that any failure to react on Morin's
part resulted from inattention, excessive speed, or intoxication or that the accident
arose from any circumstance other than the sudden appearance of a horse in the
middle of the highway.  On appeal, even Military Highway blames the horse, not
Morin. (5) 
	The language of section 368 requires us to incorporate a foreseeability
component into our duty analysis.  See Restatement (Second) of Torts, § 368 (1965). 
The question, then, is whether Morin and Bautista's deviation from FM 732, through
no fault of Morin's, was foreseeably in the ordinary course of travel.  To answer the
foreseeability question in the context of deciding the scope of Military Highway's duty,
we consider what constitutes "the ordinary course of travel" along FM 732, not the
"ordinary course of travel" in general.  See De La Garza, 898 S.W.2d at 810 (noting
that court decides duty question "from the facts surrounding the occurrence in
question"); cf. Swope v. Northern Ill. Gas Co., 623 N.E.2d 841, 856 (Ill. App.
Ct. 1993), appeal denied, 631 N.E.2d 719 (1994) (noting that it is "foreseeable that
one may encounter a deer" while traveling interstate highway but refusing to impose
duty on adjacent landowner to protect motorist from driving into roadside ditch to
avoid hitting it).  
	Thus, in addition to the absence of any evidence of culpability on Morin's part,
we find two facts dispositive.  First, the posted speed limit where the accident
occurred is fifty-five miles per hour.  Second, livestock freely (and legally) range along
FM 732. (6)  We find that a motorist's deviation from the highway after a full-speed
collision with a large animal was foreseeably in the ordinary course of travel on
FM 732.  Accordingly, we hold that Morin and Bautista belonged to the class of
persons to whom Military Highway owed a duty to fill the excavation on its easement. 
We overrule Military Highway's first issue.  
	We limit our holding to the conclusion that Military Highway, as a public utility
with an easement adjacent to FM 732, owed a duty to Morin and Bautista on the facts
of this case.  Nonetheless, we do not interpret the utility's argument to go so far as
to suggest it would owe no duty to Morin and Bautista under other circumstances. (7) 
We reiterate that government regulations and the utility's own procedures anticipated
that vehicles might leave the highway and accidentally encounter the excavation.  For
example, Morin's car might have run over an armadillo, veered to the right at low
speed, bumped into the unfilled excavation less than thirty feet away, and sustained
minor damage.  The catastrophic magnitude of this tragedy neither enlarges nor
diminishes Military Highway's duty.  
	We conclude that the gravamen of Military Highway's complaint goes to
causation.  We turn to Military Highway's second issue, in which the utility challenges
the legal sufficiency of the evidence to sustain the proximate-cause foreseeability
element of Morin and Bautista's negligence claims.  
 B.  Foreseeability

1.  The Legal-Sufficiency Standard of Review

	We address legal-sufficiency challenges as either "no-evidence" or "matter-of-law" issues.  Gooch v. Am. Sling Co., 902 S.W.2d 181, 183-84 (Tex. App.-Fort
Worth 1995, no writ).  When the party complaining on appeal did not bear the burden
of proof at trial, we analyze the issue as a "no-evidence" challenge.  Id.  In challenging
the legal sufficiency of the evidence to support a finding on which an adverse party
bore the burden of proof, the appellant must show that the record presents no
evidence to support the adverse finding.  Croucher v. Croucher, 660 S.W.2d 55, 58
(Tex. 1983).  
 In examining the record for sufficient evidence of foreseeability, we consider
only the probative evidence and inferences that support the finding.  See Southwest
Key Program v. Gil-Perez, 81 S.W.3d 269, 274 (Tex. 2002); see also Lenz v. Lenz,
79 S.W.3d 10, 19 (Tex. 2002). (8)  We disregard all evidence and inferences to the
contrary.  See Gil-Perez, 81 S.W.3d at 274; see also Lenz, 79 S.W.3d at 19.  We
overrule a legal-sufficiency issue if the record reflects any evidence of probative force
to support the finding.  ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430
(Tex. 1997).  If there is more than a scintilla of evidence to support the finding, the
legal-sufficiency challenge fails.  Formosa Plastics Corp. USA v. Presidio Eng'rs &
Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). 
	The evidence is no more than a scintilla and, in legal effect, is no evidence
"[w]hen the evidence offered to prove a vital fact is so weak as to do no more than
create a mere surmise or suspicion of its existence."  Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983).  Conversely, more than a scintilla exists
when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions."  Transp. Ins. Co. v.
Moriel, 879 S.W.2d 10, 25 (Tex. 1994). 
2.  The Law of Proximate-Cause Foreseeability

	The foreseeability component of proximate cause demands proof the defendant
reasonably should have anticipated the danger to others created by its conduct.  Boys
Clubs of Greater Dallas, 907 S.W.2d at 477.  In the context of proximate cause,
foreseeability requires only the general danger to be foreseeable, not the precise
sequence of events that produced the harm.  Lee Lewis Constr., Inc. v.
Harrison, 70 S.W.3d 778, 785 (Tex. 2001).  
3.  Proximate-Cause Foreseeability Analysis

 Appellees bore the burden of proof at trial.  Accordingly, we review Military
Highway's legal-sufficiency challenge as a no-evidence issue.  See Gooch, 902 S.W.2d
at 183.  Military Highway must show that the record presents no probative evidence
to support the adverse foreseeability finding.  See Croucher, 660 S.W.2d at 58. 
 Military Highway argues that Morin and Bautista's deaths were too remote from
its failure to fill the excavation to be foreseeable.  In analyzing Military Highway's
argument, we consider only the probative evidence and inferences that support the
foreseeability finding.  See Gil-Perez, 81 S.W.3d at 274; see also Lenz, 79 S.W.3d
at 19.  We disregard all evidence and inferences to the contrary.  See
Gil-Perez, 81 S.W.3d at 274; see also Lenz, 79 S.W.3d at 19.  
	Military Highway dug a hole in an open-range county less than thirty feet from
a farm-to-market road where the posted speed limit is fifty-five miles per hour.  It left
the hole unfilled:  (1) without explanation; (2) in violation of government regulations
as well as its own internal procedures imposed in anticipation of vehicles leaving the
highway and encountering the excavation; and (3) in spite of actual, not merely
constructive, knowledge of the open excavation.  
	A short time after Military Highway excavated the hole, Morin and Bautista were
traveling FM 732 at the posted speed limit.  A horse crossed the highway.  Through
no fault of his own, Morin hit the animal.  The impact caused the car to veer to the left
across the opposite lane of traffic and leave the highway.  Morin lost consciousness. 
Careening out of control, the car reached Military Highway's unfilled hole in less
than ten seconds.  One of the car's front wheels climbed the mound of dirt left from
the excavation.  The other front wheel plunged into the hole.  The car flipped and
rolled.  Still hurtling at least thirty-five miles an hour, the car slammed upside down
into a tree more than one hundred feet from the hole.  
	Morin and Bautista did not die of the injuries they received in the collision with
the horse.  They died of the head injuries they sustained when they were ejected from
the car after it hit the excavation, flipped, and rolled.  
	In some cases, the happenstance of place and time is too far removed from
the defendant's conduct for liability to attach.  Lear Siegler, Inc. v.
Perez, 819 S.W.2d 470, 472 (Tex. 1991).  This is not one of those cases.  In Lear
Siegler, the manufacturer of a flashing roadway sign was not held liable for an accident
that resulted when a driver who had fallen asleep at the wheel struck a worker fixing
a malfunctioning sign.  Id.  The supreme court held that the chain of events was too
remote to impose liability for the worker's injuries on the sign manufacturer.  Id. 
Cases like Lear Siegler are characterized by a causal break in place and time, such as
that between manufacture of the malfunctioning sign and the worker's injury.  See id. 

	In the same way, independent acts of the claimant between the alleged
negligence and the injury also can foreclose liability.  See Pifer v.
Muse, 984 S.W.2d 739, 742-43 (Tex. App.-Texarkana 1998, no pet.) (refusing to
hold homeowner liable for gunshot sustained by would-be rescuer when weapon
discharged in heat of fire started by untended candle after he tried to enter house in
mistaken belief occupant needed help); see also Pinkerton's v.
Manriquez, 964 S.W.2d 39, 48 (Tex. App.-Houston [14th Dist.] 1997, pet. denied)
(holding that employee's decision to put car in neutral, stand behind it, and push it up
steep ramp in parking garage too remote from security guard's instruction to assist
customer with stalled car for instruction to constitute cause in fact of employee's
injuries).
 We find no remoteness in place and time between Military Highway's failure to
fill the hole and Morin and Bautista's deaths.  Nor do we find any independent decision
or action on Morin's part that broke the chain of causation.  See Manriquez,
964 S.W.2d at 48; see also Muse, 984 S.W.2d at 741-42.  
	The same locale links highway, horse, car, and hole.  Propelled across a Texas
pasture, unerringly toward exactly the wrong place, in a blink of time Morin and
Bautista died.  Although exact details of the sequence of events that ended Morin and
Bautista's lives may not have been foreseen by Military Highway, we conclude that the
general danger created by its failure to fill the excavation was foreseeable.  See Lee
Lewis Constr., 70 S.W.3d at 785.  
	Bad luck sometimes makes bad law.  See Williams v.
Glash, 789 S.W.2d 261, 266 (Tex. 1990) (Spears, J., dissenting).  Here, however,
Texas law squarely and justly imposes liability on Military Highway.  The victims of
this tragedy were not in the wrong place at the wrong time for the wrong reason. 
Military Highway's excavation was.  
	We find more than a scintilla of evidence "that would enable reasonable and fair-minded people to differ in their conclusions" about whether Morin and Bautista's
deaths were foreseeable.  See Moriel, 879 S.W.2d at 25.  We hold the evidence
legally sufficient to support a proximate-cause foreseeability finding.  See Lee Lewis
Constr., 70 S.W.3d at 785.  We overrule Military Highway's second issue.  We now
address Military Highway's alternative issues complaining of the damages awarded by
the judgment.  
IV.  JUDGMENT DAMAGES

A.  Mota's Damages

	In its third issue, Military Highway complains the judgment improperly awarded
Mota $60,000 more in damages than the jury found.  We agree.  Except in limited
circumstances not applicable here, a trial court is required to render a judgment that
conforms to the jury verdict.  Tex. R. Civ. P. 301; see Phillips v.
Phillips, 820 S.W.2d 785, 787 n.2 (Tex. 1991); see also First Nat'l Bank in Dallas v.
Zimmerman, 442 S.W.2d 674, 678 (Tex. 1969).  The trial court denied Military
Highway's post-trial motions to modify or reform from $385,000 to $325,000 that
portion of the judgment awarding damages to Mota.  Appellees did not respond on
appeal to Military Highway's third issue.  We find no basis, either, for the trial court's
departure from the verdict in awarding Mota damages.  Accordingly, we hold that the
trial court was required to render judgment for Mota for $325,000 in conformity with
the jury's verdict.  See Tex. R. Civ. P. 301.  We sustain Military Highway's third issue. 
B.  Stipulated Statutory Limitation on Damages

	In its fourth issue, Military Highway contends the trial court did not apply the
parties' stipulation that the liability cap contained in section 84.006 of the civil
practice and remedies code applied to Military Highway as a non-profit public utility. 
See Tex. Civ. Prac. & Rem. Code Ann. § 84.006 (Vernon 1997).  Military Highway
argues that the damages the judgment awarded to Bautista's estate and survivors
should be reduced from a total of $630,710 (which includes pre-judgment interest) to
the statutory cap of $500,000.  Appellees counter that Military Highway rejected the
Bautista parties' offer to settle for $500,000.  They cite no authority, however, for
their proposition that the damages limitation does not apply for that reason. 
1.  Cumulative Claims

	The first question Military Highway presents is whether section 84.006 limits
its total liability to $500,000 for the injury or death of one person, regardless of the
number of people who suffered loss as a result.   See id.  Military Highway argues we
should interpret section 84.006 in the same way as section 101.023 of the Texas Tort
Claims Act.  See Tex. Civ. Prac. & Rem.  Code Ann. § 101.023 (Vernon Supp. 2003). 
We agree.  Section 101.023 limits liability under its provisions for the injury or death
of one person, regardless of the number of people who suffered loss as a result. 
McGovern v. Williams, 741 S.W.2d 373, 375 (Tex. 1987) (citing City of Austin v.
Cooksey, 570 S.W.2d 368, 388 (Tex. 1978)); Tex. Dep't of Transp. v.
Ramming, 861 S.W.2d 460, 467 (Tex. App.-Houston [14th Dist.] 1993, writ denied). 
Accordingly, we conclude that section 84.006 of the civil practice and remedies code
limits liability for the injury or death of one person to $500,000, regardless of the
number of people who suffered loss as a result.  See Tex. Civ. Prac. & Rem. Code
Ann. § 84.006 (Vernon 1997). 
2.  Pre-Judgment Interest

	The second question Military Highway presents is whether the cap contained
in section 84.006 includes pre-judgment interest.  See id.  Military Highway again
argues we should interpret section 84.006 like section 101.023 and hold that pre-judgment interest is included within the "damages" subject to limitation.  We again
agree.  The damages cap in section 101.023 includes pre-judgment interest.  Weller
v. State, 682 S.W.2d 234, 234-235 (Tex. 1984) (per curiam) (op. on reh'g).  We hold
that the $500,000 limitation of liability contained in section 84.006 of the civil
practice and remedies code includes pre-judgment interest.  See Tex. Civ. Prac. & Rem.
Code Ann. § 84.006 (Vernon 1997).  
	Accordingly, we hold that section 84.006 of the civil practice and remedies
code limits Military Highway's total liability to Bautista's estate and survivors to
$500,000.  See id.  The parties stipulated they would limit Military Highway's
damages as required by section 84.006.  See id.  Accordingly, we sustain Military
Highway's fourth issue.  
V.  CONCLUSION

	We reverse that portion of the judgment awarding a total of $630,710 to
Bautista's estate and survivors.  Instead of remanding for a new trial, we suggest
remittitur by the Bautista parties of $130,710.  See Tex. R. App. P. 46.3; see also
Formosa Plastics, 960 S.W.2d at 51.  If the Bautista parties file the remittitur within
fifteen days of the date of this opinion, we will supplement this opinion and:  (1) affirm
the jury's liability finding; (2) reverse that portion of the judgment awarding $385,000
to Maria Del Pilar Mota and render judgment in her favor for $325,000; (3) reverse
that portion of the judgment awarding a total of $630,710 to Bautista's estate and
survivors; modify the damages awarded to each as directed in the remittitur, not to
exceed a total of $500,000; and affirm the judgment as modified; and (4) order the
parties to bear their own costs on appeal.  See Gorges Foodservice, Inc. v.
Huerta, 964 S.W.2d 656, 677 (Tex. App.-Corpus Christi 1997, pet. withdrawn); see
also Hoechst Celanese Corp. v. Arthur Bros., Inc., 882 S.W.2d 917, 931 (Tex.
App.-Corpus Christi 1994, writ denied) (op. on reh'g).  If the Bautista parties do not
file the suggested remittitur within fifteen days, we will supplement this opinion and: 
(1) reverse that portion of the judgment awarding $385,000 to Maria Del Pilar Mota
and render judgment in her favor for $325,000; (2) remand the remainder of the cause
for a new trial on all issues of liability and damages; and (3) tax all costs on appeal to
appellees.  See Tex. R. App. P. 43.2(d), 44.1(b); see also Gorges
Foodservice, 964 S.W.2d at 677; Hoechst Celanese, 882 S.W.2d at 931.  
 
								ERRLINDA CASTILLO
								Justice

Opinion delivered and filed
this 26th day of August, 2003.	
1.  Retired Justice J. Bonner Dorsey assigned to this Court by the Chief Justice of the Supreme
Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
2.  Appellees are the decedents' estates and survivors.  
3.  Counties without local-option stock laws in place permit the free range of livestock along farm-to-market roads.  For a thorough discussion of the constitutional and statutory development of local
stock laws, see Gibbs v. Jackson, 990 S.W.2d 745, 747-50 (Tex. 1999).  State law prohibits the free
range of livestock along federal and state highways.  See Tex. Agric. Code Ann. §§ 143.101, 143.102
(Vernon 1982 & Supp. 2003).  
4.  Military Highway's manager testified that regulations promulgated by the Texas Department
of Transportation required the utility to fill the excavation.  The specific regulation was not identified
at trial.  
5.  The horse's owner has no liability as a matter of law.  See Gibbs, 990 S.W.2d at 750.  
6.  See note 3.  
7.  We do not, by our illustration, intend to suggest the parameters of those circumstances.  
8.  But see Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, Inc.,
960 S.W.2d 41, 48 (Tex. 1998) (holding that legal-sufficiency review is conducted by considering "all
the record evidence" in light most favorable to prevailing party, indulging every reasonable inference in
that party's favor).  A unanimous supreme court, without discussing the analytical construct applied in
Formosa Plastics, "reaffirmed the traditional and historical statement of the scope of review [w]hen the
court stated: '[w]e emphasize . . . that under a legal-sufficiency review, we must disregard all evidence
and inferences contrary to the jury's finding.'"  W. Wendell Hall, Standards of Review in Texas, 34 St.
Mary's L.J. 1, 160 (2002) (quoting Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002)).  We apply the
supreme court's most recent analytical construct.  

