85 Va. Cir. 195
Rockingham Cir. Ct.2012Background
- Judge sua sponte addresses demurrer to Second Amended Complaint by H & H Auto Service Center, Inc.
- Demurrer tests legal sufficiency of pleaded facts, not proof, per Virginia Supreme Court precedent.
- Plaintiff alleges negligent entrustment, negligent hiring, and negligent retention related to Hostetter driving a company truck.
- Plaintiff asserts H & H knew or should have known Hostetter was an unfit driver based on his driving history and criminal record.
- Court sustains negligent entrustment demurrer (insufficient facts), but overrules negligent hiring and negligent retention demurrers and grants leave to amend.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligent entrustment viability | Plaintiff alleges H & H knew or should have known Hostetter was unfit. | Hostetter unfitness not sufficiently pleaded as fact, only conclusions. | Granted: negligent entrustment demurrer sustained. |
| Negligent hiring viability | Hostetter's past violations show unfitness in hiring. | Insufficient to prove lack of reasonable care in hiring. | Overruled: negligent hiring survives. |
| Negligent retention viability | Employer knew/should have known risk from Hostetter and retained him. | Retention not adequately pleaded. | Overruled: negligent retention survives. |
Key Cases Cited
- Turner v. Lotts, 244 Va. 554, 422 S.E.2d 765 (1992) (negligent entrustment limits require specific factual showing of unfitness)
- J. v. Victory Tabernacle Baptist Church, 236 Va. 206, 372 S.E.2d 391 (1988) (negligent hiring vs. respondeat superior; distinct theories)
- Interim Personnel of Central Va., Inc. v. Messer, 263 Va. 435, 559 S.E.2d 704 (2002) (negligent hiring requires known propensities and reasonable investigation)
- Southeast Apts. Mgmt., Inc. v. Jackman, 257 Va. 256, 513 S.E.2d 395 (1999) (negligent retention defined; liability for retaining dangerous employee)
- Philip Morris, Inc. v. Emerson, 235 Va. 380, 368 S.E.2d 268 (1988) (independent tort of negligent retention recognized)
- Norfolk Protestant Hosp. v. Plunkett, 162 Va. 151, 173 S.E. 363 (1934) (early negligent retention doctrine)
- Dunn, McCormack & MacPherson v. Connolly, 281 Va. 553, 708 S.E.2d 867 (2011) (demurrer standards—testing legal sufficiency of allegations)
- Luckett v. Jennings, 246 Va. 303, 435 S.E.2d 400 (1993) (fact-finding and inference allowed in demurrer context)