## Facts

- Sally V. Gibson, a customer at a Wal-Mart store in Norton, Virginia, shopped with her husband for a grill, charcoal, and charcoal lighter fluid.
- On August 29, 1998, she attempted to retrieve a container of lighter fluid stored on a shelf above her head but within her reach.
- She reached up, grasped the container, and tipped it so the top was lower than the bottom.
- Lighter fluid spilled onto her clothing and into her mouth; she swallowed some and became unable to speak.
- A Wal-Mart employee contacted a hospital and then poison control; poison control advised giving her water, which the employee provided.
- The employee had Mrs. Gibson complete an incident report; no ambulance was called, and Mr. Gibson drove her to the hospital.
- Mrs. Gibson sued Wal-Mart and the product’s manufacturer/packager (R.W. Packaging, Ltd.) alleging federal statutory violations and Virginia negligence-based product and premises claims.

## Issues

1. Whether the Federal Hazardous Substances Act, Poison Prevention Packaging Act, or Toxic Substances Control Act provides a private right of action for personal-injury damages on the alleged facts.
2. Whether plaintiff produced sufficient evidence of a product defect and proximate causation to support Virginia claims for negligent design, manufacture, or marketing against the seller and manufacturer/packager.
3. Whether Wal-Mart breached a duty of reasonable care by placing lighter fluid on a shelf above the customer’s head but within reach.
4. Whether Wal-Mart breached a duty of reasonable care in its post-incident response to the customer’s exposure to lighter fluid.
5. Whether, under Rule 56, the record showed a genuine dispute of material fact on any claim.

## Decision

- The court granted summary judgment for Wal-Mart and R.W. Packaging on all counts.
- The court held the cited federal statutes did not support the plaintiff’s attempted private damages claims.
- The court held the product-liability negligence claims failed for lack of competent evidence of defect and proximate causation.
- The court held the negligent product-placement claim failed because the shelf placement did not constitute an unreasonable risk on the record presented.
- The court held the post-incident negligence claim failed because Wal-Mart sought medical guidance and followed poison control instructions.

## Legal Principles

- Summary judgment is appropriate when the nonmovant fails to produce specific, competent evidence creating a genuine dispute of material fact on an essential element.
- Conflicting or self-contradictory testimony, without supporting proof, may be insufficient to establish a triable issue on defect or causation.
- Federal regulatory statutes do not support private personal-injury damages actions absent a private right of action; alleged regulatory noncompliance may, at most, inform state-law theories.
- Under Virginia negligence-based product liability, a plaintiff must present evidence of a defect (design, manufacture, or warnings/marketing) and that the defect proximately caused the injury.
- A retailer’s duty to invitees requires reasonable care, but liability generally requires proof of an unreasonable risk and knowledge (actual or constructive) of that risk.
- Post-incident negligence requires proof that the response fell below reasonable care; seeking professional guidance and following it generally satisfies that duty absent contrary evidence.

## Conclusion

The court entered judgment for both defendants because the federal statutes invoked did not supply the private damages remedies sought, and the plaintiff’s evidence did not create a triable question that a product defect or Wal-Mart’s shelf placement or response after the spill proximately caused her injuries.


Gibson v. Wal-Mart Stores, Inc., 189 F. Supp. 2d 443 (W.D. Va. 2002)