*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this opinion should not be published and is not precedent except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

FILED

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,
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, lowlying 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.