OPINION
Opinion by
PAUL W. GREEN, Justice.
In this personal injury case, appellant, Wal-Mart Stores, Inc., appeals from a jury verdict in favor of appellee, Paula Garza. In three issues, Wal-Mart complains (1) there is no evidence of a premises defect to support the jury’s verdict against Wal-Mart, (2) if the case was properly submitted as a premises defect case, there is no evidence or insufficient evidence the defect proximately caused Paula Garza’s injury, and (3) remittitur is required because there is no evidence or insufficient evidence of future medical damages. In a single cross-point, Garza alleges Wal-Mart’s employee, Melecio Garza, should have been found negligent as a matter of law; therefore, the verdict against Wal-Mart may be upheld on a theory of vicarious liability. We reverse the trial court’s judgment in part and render judgment in favor of Wal-Mart.
Background
Paula Garza (Garza) was shopping at Wal-Mart on December 26, 1996, when she was struck in the back of the head and neck by a boxed television being lifted down from a storage riser by a Wal-Mart employee, Melecio Garza (Melecio). Ger-ónimo Rios, another employee, had used a ladder to climb up on the display and asked a second employee, Juan, to get a second ladder to help him. Melecio came along and lifted the television box off the riser. The set was a 19” television weighing about 30-35 pounds. Melecio testified he had no problem with the weight of the
small television but as he turned to hand the set to the customer, he simply did not see where Garza was standing and struck her with the box. Rios says the box slipped out of Melecio’s hands and fell on Garza. It is undisputed the stacked television boxes were stable and not likely to fall, and the riser was well able to bear the weight of the television boxes.
Garza sued both Wal-Mart and the employee, Melecio Garza. The jury was given the following instructions:
“NEGLIGENCE ” when used with respect to WAL-MART STORES, INC., means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier knows about or in the exercise of ordinary care should know about.
[[Image here]]
“NEGLIGENCE” when used with respect to Melecio Garza means failure to use ordinary care; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
A single liability question was presented to the jury:
Did the negligence, if any, of those named below proximately cause the occurrence in question?
Answer “Yes” or “No” for each of the following
WAL-MART STORES, INC_
MELECIO GARZA _
The jury answered “No” as to Melecio Garza and Wes” as to Wal-Mart.
Wal-Mart argues because the jury answered “No” to the negligence of Melecio Garza, Wal-Mart cannot be held liable under a negligent activity claim. Wal-Mart then complains the question of Wal-Mart’s liability is presented as a “premises de-[67]*67feet” question, yet there is no evidence of a premises condition or premises defect to support the jury’s “Yes” answer as to Wal-Mart.
(1) Premises Defect or Negligent Activity ?
Garza characterizes the claim as a “premises defect” case. Wal-Mart asserts it is a negligent activity case. Both parties agree the definition of negligence presented to the jury with regard to Wal-Mart outlines the elements of a premises defect case.
Liability for injury on business premises may be found under either a premises defect theory or a negligent activity theory. See Clayton W. Williams, Jr. v. Olivo, 952 S.W.2d 528, 527 (Tex. 1997); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Wal-Mart Stores, Inc. v. Bazan, 966 S.W.2d 745, 746 (Tex. App.-San Antonio 1998, no pet.). Recovery for a negligent activity requires that the plaintiff was injured by or as a contemporaneous result of the activity itself. Keetch, 845 S.W.2d at 264; Wal-Mart Stores, Inc. v. Bazan, 966 S.W.2d at 746. A claim the premises themselves are unsafe is a premises defect claim. Keetch, 845 S.W.2d at 264; Bazan, 966 S.W.2d at 746. A premises liability claim must be either a premises defect case or a negligent activity case. See Olivo, 952 S.W.2d at 527; Keetch, 845 S.W.2d at 264; Bazan, 966 S.W.2d at 746^47. We must determine whether Garza’s injury resulted from a condition or an activity.1 See Laurel v. Herschap, 5 S.W.3d 799, 802 (Tex.App.San Antonio 1999, no pet.).
Garza argues the premises condition is the placement of heavy items in a high location where they could fall on someone when being moved or pulled. Garza does not argue the actual stacks were unstable or somehow subject to being knocked over, only that Wal-Mart knew there was a risk heavy objects could be dropped on a customer while being moved from a high storage location. The very nature of the claim shows some activity had to occur in order for injury to result. Garza was injured by the contemporaneous activity of Melecio removing the item from the shelf.
Because the case is not a premises defect case, the jury charge is erroneous and the jury’s answer is not supported by the evidence. We will reverse that portion of the trial court’s judgment awarding damages against Wal-Mart on the basis of a premises defect. We need not address Wal-Mart’s contention there is no evidence or insufficient evidence of causation.
(2) Garza’s cross point
In a cross point, Garza argues the trial court should have granted a judgment n.o.v. finding the employee, Melecio Garza, negligent as a matter of law. Wal-Mart contends Garza waived this point when she failed to file a notice of appeal. We agree.
“A party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.” Tex. R.App. P. 25.1(c). Garza argues she may [68]*68raise her issue as a cross point without filing a notice of appeal because she is not seeking more favorable relief than what was awarded by the trial court. See Tex. R.App. P. 25.1(c); Bosque Asset Corp. v. Greenberg, 19 S.W.3d 514, 520 (TexApp.-Eastland 2000, n.p.h.); Dean v. Lafayette (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
We disagree with Garza’s characterization of her cross point. If we hold Melecio Garza negligent as a matter of law, the result must be a judgment of liability against Melecio Garza, a separate party who was not made a party to this appeal.
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OPINION
Opinion by
PAUL W. GREEN, Justice.
In this personal injury case, appellant, Wal-Mart Stores, Inc., appeals from a jury verdict in favor of appellee, Paula Garza. In three issues, Wal-Mart complains (1) there is no evidence of a premises defect to support the jury’s verdict against Wal-Mart, (2) if the case was properly submitted as a premises defect case, there is no evidence or insufficient evidence the defect proximately caused Paula Garza’s injury, and (3) remittitur is required because there is no evidence or insufficient evidence of future medical damages. In a single cross-point, Garza alleges Wal-Mart’s employee, Melecio Garza, should have been found negligent as a matter of law; therefore, the verdict against Wal-Mart may be upheld on a theory of vicarious liability. We reverse the trial court’s judgment in part and render judgment in favor of Wal-Mart.
Background
Paula Garza (Garza) was shopping at Wal-Mart on December 26, 1996, when she was struck in the back of the head and neck by a boxed television being lifted down from a storage riser by a Wal-Mart employee, Melecio Garza (Melecio). Ger-ónimo Rios, another employee, had used a ladder to climb up on the display and asked a second employee, Juan, to get a second ladder to help him. Melecio came along and lifted the television box off the riser. The set was a 19” television weighing about 30-35 pounds. Melecio testified he had no problem with the weight of the
small television but as he turned to hand the set to the customer, he simply did not see where Garza was standing and struck her with the box. Rios says the box slipped out of Melecio’s hands and fell on Garza. It is undisputed the stacked television boxes were stable and not likely to fall, and the riser was well able to bear the weight of the television boxes.
Garza sued both Wal-Mart and the employee, Melecio Garza. The jury was given the following instructions:
“NEGLIGENCE ” when used with respect to WAL-MART STORES, INC., means failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier knows about or in the exercise of ordinary care should know about.
[[Image here]]
“NEGLIGENCE” when used with respect to Melecio Garza means failure to use ordinary care; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances.
A single liability question was presented to the jury:
Did the negligence, if any, of those named below proximately cause the occurrence in question?
Answer “Yes” or “No” for each of the following
WAL-MART STORES, INC_
MELECIO GARZA _
The jury answered “No” as to Melecio Garza and Wes” as to Wal-Mart.
Wal-Mart argues because the jury answered “No” to the negligence of Melecio Garza, Wal-Mart cannot be held liable under a negligent activity claim. Wal-Mart then complains the question of Wal-Mart’s liability is presented as a “premises de-[67]*67feet” question, yet there is no evidence of a premises condition or premises defect to support the jury’s “Yes” answer as to Wal-Mart.
(1) Premises Defect or Negligent Activity ?
Garza characterizes the claim as a “premises defect” case. Wal-Mart asserts it is a negligent activity case. Both parties agree the definition of negligence presented to the jury with regard to Wal-Mart outlines the elements of a premises defect case.
Liability for injury on business premises may be found under either a premises defect theory or a negligent activity theory. See Clayton W. Williams, Jr. v. Olivo, 952 S.W.2d 528, 527 (Tex. 1997); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992); Wal-Mart Stores, Inc. v. Bazan, 966 S.W.2d 745, 746 (Tex. App.-San Antonio 1998, no pet.). Recovery for a negligent activity requires that the plaintiff was injured by or as a contemporaneous result of the activity itself. Keetch, 845 S.W.2d at 264; Wal-Mart Stores, Inc. v. Bazan, 966 S.W.2d at 746. A claim the premises themselves are unsafe is a premises defect claim. Keetch, 845 S.W.2d at 264; Bazan, 966 S.W.2d at 746. A premises liability claim must be either a premises defect case or a negligent activity case. See Olivo, 952 S.W.2d at 527; Keetch, 845 S.W.2d at 264; Bazan, 966 S.W.2d at 746^47. We must determine whether Garza’s injury resulted from a condition or an activity.1 See Laurel v. Herschap, 5 S.W.3d 799, 802 (Tex.App.San Antonio 1999, no pet.).
Garza argues the premises condition is the placement of heavy items in a high location where they could fall on someone when being moved or pulled. Garza does not argue the actual stacks were unstable or somehow subject to being knocked over, only that Wal-Mart knew there was a risk heavy objects could be dropped on a customer while being moved from a high storage location. The very nature of the claim shows some activity had to occur in order for injury to result. Garza was injured by the contemporaneous activity of Melecio removing the item from the shelf.
Because the case is not a premises defect case, the jury charge is erroneous and the jury’s answer is not supported by the evidence. We will reverse that portion of the trial court’s judgment awarding damages against Wal-Mart on the basis of a premises defect. We need not address Wal-Mart’s contention there is no evidence or insufficient evidence of causation.
(2) Garza’s cross point
In a cross point, Garza argues the trial court should have granted a judgment n.o.v. finding the employee, Melecio Garza, negligent as a matter of law. Wal-Mart contends Garza waived this point when she failed to file a notice of appeal. We agree.
“A party who seeks to alter the trial court’s judgment or other appealable order must file a notice of appeal.” Tex. R.App. P. 25.1(c). Garza argues she may [68]*68raise her issue as a cross point without filing a notice of appeal because she is not seeking more favorable relief than what was awarded by the trial court. See Tex. R.App. P. 25.1(c); Bosque Asset Corp. v. Greenberg, 19 S.W.3d 514, 520 (TexApp.-Eastland 2000, n.p.h.); Dean v. Lafayette (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex.App.-Houston [1st Dist.] 1999, no pet.).
We disagree with Garza’s characterization of her cross point. If we hold Melecio Garza negligent as a matter of law, the result must be a judgment of liability against Melecio Garza, a separate party who was not made a party to this appeal. Garza argues she only wants to use this result to support the judgment against Wal-Mart, not to pursue a claim against the employee. We are not bound by what Garza claims she will do with a revised judgment. By her cross point, she seeks to alter the trial court’s judgment, resulting in relief not awarded by the trial court. Garza waived her issue by failing to file a notice of appeal.
Conclusion
Because there is no evidence of a premises defect, the trial court erred in submitting a jury question based on that theory of recovery. We grant Wal-Mart’s first issue and reverse the jury finding of negligence against Wal-Mart. The jury found no negligence on the part of Wal-Mart’s employee; therefore, Garza cannot recover against Wal-Mart on a negligent activity theory. Garza waived her right to challenge the jury verdict as to Wal-Mart’s employee, Melecio Garza, by failing to file a notice of appeal on her cross point. Garza failed to secure a jury verdict on the only viable claim she had. Therefore, we must reverse the judgment in part as to the liability of Wal-Mart and render a verdict in favor of Wal-Mart. We do not reach the remaining points of error raised by Wal-Mart.
Concurring opinion by PHIL HARDBERGER, Chief Justice, joined by Justice LÓPEZ.