James E. Thacker, Individually and as Next Friend for Jada Thacker, a Minor v. J. C. Penney Company

WISDOM, Circuit Judge.

James E. Thacker, on his own behalf and as natural guardian and next friend of his child, Jada Thacker, brings this *674suit for damages for injuries to his child who fell from a balcony in J. C. Penney's department store in Odessa, Texas. Jurisdiction is based on diversity of citizenship.

The plaintiff-appellant contends that the defendant is liable for breach of its duty to maintain safe premises. The defendant-appellee contends: (1) that the danger was open and obvious and that the existence of such a danger did not shift the care of the appellant’s child from his parent…