Caperton, et al v. Big Lots Inc

*Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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United States Court of Appeals
Fifth Circuit
F I L E D
March 17, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-10595
LANA CAPERTON AND STEVE CAPERTON,
Plaintiffs-Appellants,
Versus
BIG LOTS, INC.
Defendant-Appellee.
Appeal from the United States District Court,
Northern District of Texas-Dallas Division
No. 3:02-CV-1306-N
Before JOLLY, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiffs Lana and Steve Caperton appeal the district court’s
dismissal of their premises liability and bystander claims. Based
on photographs in the record, we conclude that issues of fact are
presented as to whether there existed an “unreasonable risk of
harm” on the Big Lots premises, and we REVERSE summary judgment and

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REMAND this case to the district court.
I.
Lana Caperton was injured when she tripped and fell over a
partially covered wooden pallet while walking down a shopping aisle
at a Big Lots, Inc. store (“Big Lots”) in Terrell, Texas. She sued
Big Lots in County Court in Dallas County, Texas under a theory of
premises liability, and her husband, Steve Caperton, added a
bystander claim. Big Lots removed the case to federal district
court. After a short discovery period, Big Lots moved for summary
judgment, arguing that the Capertons could not produce evidence
creating a fact issue as to whether (1) Big Lots had actual or
constructive knowledge of the dangerous condition; and (2) the Big
Lots aisle posed an unreasonable risk of harm, both necessary
elements to making out a case for premises liability under Texas
law. See Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992).
The Capertons argued that Big Lots employees constructed and
placed the partially filled pallet in the aisle where Lana was
injured. They argued that, for summary judgment purposes, this
establishes Big Lots’ knowledge of the condition of the display
pallet. The Capertons produced photographs taken by Big Lots’
insurance adjuster, which depict a shopping aisle at Big Lots
delineated on one side by stacked merchandise displayed on wooden
pallets. The merchandise does not completely cover the pallet,
however, allowing a part of the pallet to protrude uncovered into
the aisle at approximately shin level. Along with the photographs,

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1In her deposition, Lana Caperton testified that she was
walking down the aisle at Big Lots when an item on one of the
merchandise displays caught her eye. As she turned to get a
closer look, her right foot became caught on the corner of an
uncovered portion of the display pallet and twisted her around,
causing her to trip and fall. She testified that she did not see
the uncovered portions of the pallet before she was injured.
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the Capertons attached a portion of Big Lots’ Risk Management
Policy Manual (“Policy Manual”) which identifies low displays as
possible “trip hazards” and instructs Big Lots employees to
immediately restock any display that falls below knee level. The
Capertons argued that the photographs, Policy Manual, and Lana
Caperton’s testimony1 show that a fact issue exists as to whether
the partially covered pallet was a dangerous condition that was
likely to result in injuries to a customer such as Lana.
The district court held that the Capertons’ summary judgment
evidence was sufficient to allow the court to infer that Big Lots
knew or should have known that the low-lying wooden pallets were
not fully covered with merchandise. Nevertheless, the court
concluded, the Capertons’ evidence did not demonstrate that the Big
Lots’ display posed an “unreasonable risk of harm.” The court
reasoned that, even if the Policy Manual’s instructions establish
a legal standard of dangerousness, the Capertons could not show
through either the photographs or deposition testimony that Big
Lots had violated its own standard of conduct. The court also held
that because Steve Caperton was at work at the time of the accident
and did not witness the accident, he could not recover as a

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bystander under Texas law. Therefore, the court dismissed all of
the Capertons’ claims, and this appeal followed.
II.
An “unreasonable risk of harm” exists under Texas law if
“there is such a probability of a harmful event occurring that a
reasonably prudent person would have foreseen it or some similar
event as likely to happen.” Brookshire Grocery Co. v. Taylor, 102
S.W.3d 816, 822 (Tex. Civ. App.-Texarkana 2003) (quoting
Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex.
1970)). After reviewing the summary judgment evidence, we
conclude that the photographs and Lana’s testimony are sufficient
to raise a fact issue as to whether a partially covered, low-
lying wooden pallet in the store aisle created an “unreasonable
risk of harm.” If a jury were to conclude that Big Lots violated
its own Policy Manual and allowed potential “tripping hazards” to
exist by not restocking the aisle displays, it could also
reasonably conclude that Big Lots should have foreseen that an
injury such as the one suffered by Lana Caperton could occur in
the Big Lots store.
We agree with the district court, however, that because
Steve Caperton was not near the accident scene and did not
witness the accident, he cannot recover as a bystander in this
case. See United Servs. Auto. Ass’n v. Keith, 970 S.W.2d 540,
542 (Tex. 1998)(“Texas law still requires the bystander’s
presence when the injury occurred and the contemporaneous

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perception of the accident”.)(citing Freeman v. City of Pasadena,
744 S.W.2d 923 (Tex. 1988)).
Therefore, we AFFIRM the district court’s dismissal of Steve
Caperton’s bystander claim, REVERSE the court’s dismissal of Lana
Caperton’s premises liability claim, and REMAND this case for
further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part and REMANDED.

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