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Wal-Mart Stores must pay $2.2 million to a woman who slipped on soap in the restroom of the Winchester Wal-Mart, in a decision released Aug. 17 by the 4th U.S. Circuit Court of Appeals.

In her suit, Ladonna Goehler alleged that she had slipped in liquid soap that pooled on the floor underneath the soap dispenser.

The unpublished per curiam opinion is available as Goehler v. Wal-Mart Stores Inc. (VLW 000-2-191).

Although the store maintained that the dispenser had always been situated over the sink, so that excess soap dripped directly into the basin, the plaintiff employed an expert witness who produced photographs showing that the soap dispenser had in fact been moved, according to the 4th Circuit's opinion.

The retailing giant then supplemented its discovery responses to acknowledge that the dispenser was moved. The appellate court said the district court did not err in letting the jury know that Wal-Mart had changed its position regarding whether the dispenser had been moved, in order to impeach Wal-Mart's credibility as to the dispenser's original location.

At trial, Wal-Mart speculated that the soap dispenser might have been moved by maintenance workers when they installed a paper towel dispenser. The dispute between the parties did not implicate Rule 407 of the Federal Rules of Evidence, the appellate panel said, because the retailer had not relocated the dispenser to remedy a hazardous condition, and indeed, may not have directed relocation of the dispenser at all.

And the plaintiff produced evidence of the store's negligence, the panel said. Under Virginia law on premises liability, "[w] here a defendant's affirmative conduct in this case, the placement of the soap dispenser is alleged to have created a dangerous condition on its premises, the jury must determine whether 'an ordinarily prudent person, given the facts and circumstances [the defendant] knew or should have known, could have foreseen the risk of danger resulting from such circumstances."

One of the store's maintenance employees testified that she knew that these dispensers sometimes leaked. Based on this evidence, a reasonable juror could conclude that Wal-Mart had constructive notice of the danger of soap leaking onto the floor, and that this danger was foreseeable as a result of the location of the soap dispenser.

The size of the verdict was not excessive, the panel said, because the plaintiff and her doctor both testified to her extreme pain. She underwent surgery for relief from that pain, after which she developed two serious staph infections, producing complications that required additional surgeries.

Plaintiff was represented by attorneys Jeffrey A. Breit and John L. Watts of the law firm of Breit, Drescher & Imprevento, P.C.

Awarded: $2,200,000

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