Opinion
Civil Action No. 3:02-CV-1306-N
October 23, 2003
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant's Motion for Summary Judgment. Defendant Big Lots, Inc. ("Big Lots") argues that summary judgment is warranted because Plaintiff's Lana Caperton and Steve Caperton have failed to raise genuine issues of material fact concerning: (1) Plaintiff Lana Caperton's premises liability claim; (2) Plaintiff Lana Caperton's claim for loss of consortium; and (3) Plaintiff Steve Caperton's bystander claims. Because Plaintiff's tort action does not raise issues of material fact as to all elements of premises liability, summary judgment is appropriate. Since Steve Caperton did not suffer a serious physical injury, Lana Caperton cannot recover for loss of consortium. In addition, because Steve Caperton was not present when his wife's alleged injury occurred, his bystander claim must fail.
I. BACKGROUND
On April 28, 2000, Plaintiff Lana Caperton and a friend entered the Big Lots store in Terrell, Texas. During her shopping visit, she claims that she tripped and fell over a wooden pallet that was "sticking out in the [shopping] aisle with nothing on it," causing her to fall on her right knee and elbow, hit her head, and twist her neck and back. She asserts claims under a theory of negligence for physical pain, mental pain, loss of consortium, disability, disfigurement, medical expenses, and loss of earning capacity. Her husband, Steve Caperton, who was at his place of employment at the time of the incident, seeks damages for bystander claims and loss of consortium.
II. ANALYSIS A. Plaintiff Lana Caperton's Premises Liability Case
Big Lots argues that summary judgment is appropriate because Plaintiff cannot establish that Big Lots had actual or constructive knowledge of a dangerous condition on the premises, that the condition posed an unreasonable risk of harm, or that the owner/operator did not exercise reasonable care to reduce or eliminate the risk. The Court agrees.
The elements of a premises liability cause of action in Texas are:
(1) Actual or constructive knowledge of some condition on the premises by the owner/operator; (2) That the condition posed an unreasonable risk of harm; (3) That the owner/operator did not exercise reasonable care to reduce or eliminate the risk; and (4) That the owner/operator's failure to use such care proximately caused the plaintiff's injuries.Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (quoting Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)). In order to prevail on a motion for summary judgment, the moving party must establish that there is no issue of material fact, and that it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Mitchell v. Baker Hotel of Dallas, Inc., 528 S.W.2d 577, 578 (Tex. 1975). The Court construes all evidence in favor of the party opposing the motion. U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962), Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
In response, Plaintiff must present more than a "mere scintilla" of probative evidence to raise a genuine issue of material fact as to each element of her claim. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). In this matter, Plaintiff must first proffer evidence that Big Lots had actual or constructive knowledge of the condition which caused Lana Caperton's injury. See Keetch v. Kroger Co., 845 S.W.2d at 265. Absent a showing of actual knowledge, "constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection." CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000). However, Texas courts have consistently refused to extend premises liability to cases where a plaintiff has not shown that an owner knew or should have known — based upon the length of time a condition existed — about a dangerous condition. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 814-16 (Tex. 2002). Such imposition of liability would be tantamount to establishing strict liability for slip-and-fall cases in Texas. Id. at 816.
Plaintiff Lana Caperton proffers scant evidence probative of Big Lots' actual or constructive knowledge of the misplaced pallet. Her allegations and the affidavits provided suggest an encumbrance sticking out well into the shopping aisle, but she provides no evidence as to (1) how long this condition existed; (2) whether the pallet was somehow knocked out of place or if the display had simply been designed poorly; and (3) if the area had been recently inspected. Upon her allegations alone, it is impossible to determine that Big Lots had actual knowledge of the pallet placement, or constructive knowledge that the pallet was in a dangerous position for a long enough period to suggest actionable negligence. See Wal-Mart Stores v. Reece, 81 S.W.3d at 816 ("there must be some proof of how long the hazard was there before liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the dangerous condition"). Based on the summary judgment evidence, it is possible that the pallet was, like a grape freshly dropped to the floor, knocked out of place just before her injury, providing little time for Big Lots to remedy the dangerous condition. See Brookshire Food Stores, LLC. v. Allen, 93 S.W.3d 897, 901 (Tex.App.-Texarkana 2002) (jury verdict in favor of plaintiff reversed, in part due to plaintiff's failure to raise material fact concerning length of time grape had been on the ground).
Plaintiff does, however, attach photographs which appear to represent the aisles of the Big Lots store in Terrell, Texas. Plaintiff does not place these pictures in any context, and offers no summary judgment proof that the pictures represent the pallet placement on the date of her injury. Should these pictures represent the aisle as it existed when Lana Caperton was injured on April 28, 2000, a material issue may well exist as to constructive knowledge. Based on these photographs, it appears that the pallets were arranged by Big Lots in such a way that a small portion of pallet remained uncovered by products, rather than showing any portion of the pallet sticking out into the aisle. In that case, constructive knowledge could be imputed under Texas law simply because it could be inferred from the regular, orderly alignment of the pallet and products that the pallet was undisturbed and, therefore, that Big Lots created the condition. Keetch v. Kroger Co., 845 S.W.2d at 265 (citing Coffee v. F. W. Woolworth Co., 536 S.W.2d 539 (Tex. 1976)) ("The fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge"); See also Total Petroleum, Inc. v. Cater, No. 05-98-00702-CV, 2000 WL 1048510, at *4 (Tex.App.-Dallas July 31, 2000, pet. denied) (not designated for publication) ("The cases hold that the length of time the dangerous condition existed is only relevant if the owner did not create the condition. . . .Knowledge of the dangerous condition may be inferred from [defendant]'s role in creating the hazard."). Thus, assuming that the pictures represent the pallets as they were at the time of Plaintiff Lana Caperton's injury, it is possible that Big Lots had constructive knowledge of the condition.
However, if the pictures provided by Plaintiff represent the pallets as they were on the date of her injury, she has not raised a material fact as to the second element of a Texas premises liability case. In order to prevail on a premises liability action, plaintiff's must also show that the condition "posed an unreasonable risk of harm." Keetch v. Kroger Co., 845 S.W.2d at 264. A condition presenting an unreasonable risk of harm is "one in which there is a sufficient probability of a harmful event occurring that a reasonably prudent person would have foreseen it or some similar event as likely to happen." Seideneck v. CaI Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970). The pictures provided to the Court, which show white boxes stacked just a few inches from the edge of a brown wooden pallet, which itself rests on a white floor, by themselves do not show a condition that creates an unreasonable risk of harm. Plaintiff offers Big Lots documentation suggesting Big Lots considered products stacked below knee level to be dangerous. Assuming arguendo this establishes some standard for dangerousness, neither the affidavits — in which Plaintiff claims that the pallet was stacked approximately 3 feet high (Deposition Tr. of Lana Caperton, at 63:11-13) — nor the photographs provided show products stacked below knee level. Therefore, even had Plaintiff Lana Caperton raised a fact issue on constructive notice by summary judgment proof establishing these were pictures of the place of her injury, there is no issue of material fact that the wooden pallets as shown in the photographs represented an unreasonable risk of harm under Texas law. Therefore, summary judgment is appropriate as to Lana Caperton's premises liability claim.
B. Plaintiff Lana Caperton's Claim for Loss of Consortium
Big Lots asserts that because Steve Caperton suffered no personal injury in this matter, Lana Caperton cannot prevail on a cause of action for loss of consortium, and summary judgment is appropriate. The Court agrees.
Texas courts have recognized the availability of relief for loss of consortium. For this cause of action,
Consortium is defined to include, `the mutual right of the husband and wife to the affection, solace, comfort, companionship, society, assistance, and sexual relations necessary to a successful marriage.' Loss of consortium can rise from either the intentional or negligent conduct of a third party. It is significant to note that a consortium action is independent and apart from the cause of action of the injured spouse.Mo. Pacific R.R. Co. v. Dawson, 662 S.W.2d 740, 741-42 (Tex.App.-Corpus Christi 1993, writ ref'd n.r.e.) (citing Whittlesey v. Miller, 572 S.W.2d 665, 666-67 (Tex. 1978)). However, "damages for loss of spousal consortium are not recoverable absent proof of physical injury." Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288, 294 (Tex. 1994). A cause of action for loss of consortium is an independent action for the non-injured spouse to recover for the "real, direct and personal" losses to the sentimental elements of the marital relationship caused by a defendant's wrongful conduct. Mo. Pacific R.R. Co. v. Dawson, 662 S.W.2d at 742. However, the injured spouse herself has no cause of action for loss of consortium under Texas law. See id. (a claim for loss of consortium arises "as a result of an injury caused to the other spouse by a third party's negligence") (citing Whittlesey v. Miller, 572 S.W.2d at 668, emphasis added).
In the instant matter, there is no allegation that Plaintiff Steve Caperton was physically injured by the conduct of Big Lots. Indeed, he confirms that he was at his place of employment during the events that gave rise to this matter. Plaintiff Lana Caperton, as the sole plaintiff with alleged physical injuries, cannot prevail on a claim for loss of consortium. Therefore, summary judgment is granted as to Plaintiff Lana Caperton's claim for loss of consortium.
C. Plaintiff Steve Caperton's Bystander Claim
Big Lots further alleges that summary judgment is appropriate since there is no material issue of fact concerning Steve Caperton's claim for bystander recovery. Because Steve Caperton was not present at the time of Lana Caperton's injury and did not have a contemporaneous perception of the accident, he cannot prevail on a bystander claim under Texas law.
In Texas, a plaintiff may recover as a bystander if he establishes that:
(1) The plaintiff was located near the scene of the accident, as contrasted with one who was a distance away from it; (2) The plaintiff suffered shock as a result of a direct emotional impact upon the plaintiff from a sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and (3) The plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship.United Servs. Auto. Ass'n v. Keith, 970 S.W.2d 540, 542 (Tex. 1998) (citing Freeman v. City of Pasadena, 744 S.W.2d 923, 923-24 (Tex. 1988)). Although the Texas Supreme Court has cautioned that "the bystander elements are flexible and should be applied on a case-by-case basis," id., "Texas law still requires the bystander's presence when the injury occurred and the contemporaneous perception of the accident." Id.
The Texas Supreme Court considered the elements required for bystander recovery in Keith. Id. at 541-42. In that case, the Texas Supreme Court held that an insured was not entitled to recover as a bystander to her daughter's fatal automobile accident. Id. Plaintiff Dianna Keith was not at the scene when the accident occurred, and did not see or hear the crash. Id. at 542. The Texas Supreme Court recognized that having rushed to the scene to witness the rescue operations and pain and suffering of her daughter, "Dianna Keith [was] in the same position as any other close relative who sees and experiences the immediate aftermath of a serious injury to a loved one," but that she could not recover under a bystander claim. Id. at 542. Indeed, although the aftermath of injuries is often "horrifying and emotionally painful," bystander recovery is limited to specific conditions which are not met when the plaintiff has not witnessed the injury. See Rodriguez v. Riddell Sports, Inc., 242 F.3d 567, 578 (5th Cir. 2001) (applying Texas bystander law). In the instant matter, there is no dispute that Steve Caperton was at his place of employment during the incident and first saw his wife after he finished his workday. Although it is beyond doubt that a spouse suffers tremendously when a loved one is injured, Texas law simply does not provide an avenue of bystander recovery if the plaintiff did not witness the incident. Therefore, Steve Caperton cannot prevail on his claim for bystander recovery, and summary judgment is granted.
CONCLUSION
The Court's review of the summary judgment proof indicates that no material issues of fact exist as to Plaintiff Lana Caperton's premises liability action; thus summary judgment is appropriate. In addition, there are no fact questions on Plaintiff Lana Caperton's claim for loss of consortium or Plaintiff Steve Caperton's claim for recovery as a bystander. Therefore, Defendant Big Lots is entitled to judgment as a matter of law for those claims. Defendants' motion for summary judgment is thus granted in its entirety.