The Cotut is asked to decide on the viability of Count V in Plaintiffs (Courtney) Amended Motion for Judgment, Defendant (Ross Stores) having filed a Demurrer. Count V alleges the Negligent Hiring, Retention, and Supervision of an employee of Ross Stores. Allegedly this employee inflicted harm on a customer in the nature of verbal abuse stemming from racial animosity.
Count V had appeared in Courtney’s original Motion for Judgment as Count VI and was amended because Judge Roush sustained a Demurrer with leave to amend.
As stated above, Courtney alleges three separate torts, each of which has been addressed in the briefs filed by the parties. All three torts share a rationale different from the traditional doctrine of respondeat superior, and each will be dealt with in turn.
Negligent Hiring
The Supreme Court in J. v. Victory Tabernacle Baptist Church,
*430 negligent hiring is a doctrine of primary liability; the employer is principally liable for negligently placing an unfit person in an employment situation involving an unreasonable risk of harm to others. Negligent hiring, therefore, enables plaintiffs to recover in situations where respondeat superior’s “scope of employment” limitation previously protected employers from liability.
Victory Tabernacle,
The concept of negligent hiring has a history in Virginia case law dating to 1903 when the Supreme Court in Big Stone Gap Iron Co. v. Ketran,
Although these cases all involved some physical harm to the plaintiffs, bad medical treatment, death, and rape, no case proscribes the existence of the tort when the tortfeasor’s actions result in injuries that are not physical, as in the instant case.
While physical injury is not an element, a negligent hiring claim does have an element of knowledge. As described in Davis,
Negligent Retention
The Supreme Court in Big Stone Gap,
To hold the company liable for the incapacity of the surgeon, it was necessary to aver and prove (1) that it was guilty of negligence in selecting an unfit surgeon, or (2) if reasonable care was exercised in the selection of a surgeon who afterwards proved to be incompetent, notice of his incompetency by reason of his inherent unfitness, or by previous specific acts of negligence, from which incompetency might be inferred; or (3) either actual notice to the master of such unfitness or bad habits, or constructive notice by showing that the master could have known the facts, had he used ordinary care in oversight and supervision, or by proving general reputation of the surgeon for incompetency or negligence; and (4) that the injury complained of resulted from the incompetency proved.
In the case law, “retention” is routinely coupled with “hiring,” as in “the jury was justified in reaching the conclusion that the negligence of defendant was the proximate cause of plaintiff’s injuries. Was the defendant negligent in its selection and retention of Miss Hudson [the offending nurse]? In our opinion, the jury was warranted in answering the question in the affirmative.” Norfolk Protestant Hosp. v. Plunkett,
The concepts were linked in Victory Tabernacle as well as Philip Morris. I think the rationale cited above from Big Stone Gap succinctly sets out how the concepts are related.
The tort requires that an employee negligently retain or fail to fire or remove an employee after learning of the employee’s incompetence, negligence, or unfitness for a position. The Courtneys allege in their Amended Motion for Judgment and, in particular, through the affidavit of Reginald
Negligent Supervision
Since we have traveled so easily from hiring to retention, why not move just as easily to recognize negligent supervision? The reason is that the courts have not recognized negligent supervision in Virginia. The Supreme Court in Chesapeake & Potomac Tel. Co. of Va. v. Dowdy,
The circumstances of Dowdy are very different from the instant case. In Dowdy a supervisor was allegedly directly harassing an employee. In the instant case, a company was allegedly not properly supervising a supervisor (Nowrovzi) who was not properly supervising a retail clerk (Sheikh) who was abusing a customer. One could argue that in Dowdy, both the injury to the victim and the responsibility of the supervisor were easier to see. Certainly, the relationship between the two was more defined. Yet, the Court refused to acknowledge the tort. This Court is not going to break new ground. Accordingly, the demurrer is sustained without leave to amend.
Perhaps as the facts play out in this case, the unavailability of this theoretical tort to the Courtneys will make little real difference. If, under the negligent retention tort, an employer has a duty to act upon notice of an employee’s incompetency or unfitness, then theoretically that employer would have to respond to complaints that come to its attention because of day-to-day failures of an employee. Thus, the distinction between retention and supervision becomes blurred.
Of note, Judge Stitt recently sustained a defendant’s Demurrer without leave to amend on a claim by a plaintiff of negligent supervision. Sladek v. Giant Food of Md., L164022 (Fairfax Cir. Ct., November 14, 1997).