This matter came before the Court for hearing on June 29, 2011, on Defendant’s Demurrer to Plaintiff’s First Amended Complaint. The original complaint in this matter was also the subject of a similar demurrer which asserted that Virginia law fails to recognize a claim for negligent supervision and/or negligent training.
Upon consideration of the arguments adduced at the hearing and the applicable case law, the Court has considered the demurrer to the first amended complaint and once again affirms its conclusion that, under the right circumstances, a claim for negligent supervision and/or negligent training of an employee may allow direct liability against a defendant employer.
Lowe’s demurs on grounds that Virginia law does not recognize a cause of action for negligent supervision or negligent training. The issue before a court on a demurrer is whether the factual allegations in the Complaint state a cause of action. Fun v. Virginia Military Inst.,
(As a preliminary matter, the Occupational Safety and Health Act (OSHA) regulations cited by Plaintiff in her Amended Complaint neither create a private cause of action nor establish negligence per se.)
Lowe’s argues that Virginia does not impose upon an employer a duty to supervise or a duty to train its employees. The Supreme Court of Virginia has addressed negligent supervision in the employment context only once. In Chesapeake & Potomac Tel. Co. v. Dowdy,
The court charged the jury that “defendants were under a duty to exercise reasonable care under all the circumstances then and there existing in their supervision of plaintiff” The court further told the jury that, if “the defendants knew or in the exercise of reasonable care should have known that their conduct would result in stress that aggravated plaintiff’s illness, but thereafter acted unreasonably in supervising plaintiff so as to aggravate his illness, then this constituted negligence.” Finally, the court required the jury to find by clear and convincing evidence that any such negligence was the proximate cause of plaintiff’s damages, if any.
Id. at 58. The Supreme Court disagreed with Dowdy’s argument that, because the defendants were on full notice that the stress they caused him was directly and adversely affecting his physical condition the jury should have been permitted to conclude it was unreasonable conduct on his employer’s part. The Court held, “In Virginia, there is no duty of reasonable care imposed upon an employer in the supervision of its employees under these circumstances, and we will not create one here.” Id. at 61.
Relying on Dowdy, Virginia circuit courts have consistently declined to recognize a distinct tort of negligent supervision. Swain v. Chippenham Johnston-Willis Hosp., Inc.,
A number of Virginia courts have similarly declined to recognize a cause of action for negligent training. Garcia v. B&J Trucking, Inc.,
The Plaintiff argues that the facts of the present case can be distinguished from those in Dowdy. The Plaintiff also correctly notes that, although the number of cases declining to find either a cause of action for negligent supervision or for negligent training is itself persuasive, those cases are not binding on this Court. The Plaintiff’s argument essentially is that the cases cited by the Defendant applied Dowdy’s limited ruling beyond its context. They argue that the Court in Dowdy did not hold that there is no duty of
The Court agrees that the circumstances in Dowdy are distinguishable from those at hand. First, in Dowdy, the claim was the employer and the plaintiff’s supervisors negligently supervised the plaintiff. Dowdy did not address whether an employer can be held liable to a third party for negligent supervision of an employee. Here, the claim is that Lowe’s failed to supervise an employee engaged in dangerous activity such that it harmed a third-party invitee, not the employee himself. Furthermore, it may be argued that the Court in Dowdy was really declining to carve out an exception to the tactile tort rule for recovery for emotional distress. Dowdy was attempting to recover for negligent infliction of emotional distress under a theory that his employer had a duty to supervise him. There the Court found that the conduct was not so wrongful or egregious to allow Dowdy to recover for emotional distress resulting from a non-tactile tort where no physical contact was made by the defendant. Here, Hernandez is suing over a tactile injury to her person.
This Court would not be alone in permitting a case to proceed on a theory of negligent supervision. Johnson-Kendrick v. Sears, Roebuck & Co.,
The broad principle of negligence has been stated as follows:
Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think would at once recognize that, if he did not use ordinary care and skill in his own conduct with regard*214 to those circumstances, he would cause danger of injury to the person or the property of the other, a duty arises to use ordinary care and skill to avoid such injury.
Southern States Grain Marketing Coop. v. Garber,
The plaintiff argues that the circumstances of this case involve an employer who directs its employees to engage in activity that foreseeably creates a danger of harm to others. Lowe’s directs its employees to climb ladders to reach heavy items on high shelves in the aisles where its customers shop. It is foreseeable that without using ordinary care and skill in directing Barnett to engage in such activity, serious and foreseeable harm may befall its customers. The harm alleged to have occurred to the Plaintiff in this case is probably the most foreseeable harm that could have resulted, a box Barnett dropped fell on her. Unlike the employer in Garcia, Lowe’s can directly supervise its employees working in its retail stores. In this case, ordinary care and skill may require a duty of supervision when Lowe’s directs an employee to engage in this dangerous activity.
With respect to negligent training, Garcia suggests that such a cause of action may also exist. However, the court noted that “the employer’s duty to train the employee runs only so far as the employee can be deemed reasonably unable to understand the risk that is involved with the employment.” Garcia,
As suggested by Garcia, there may be no duty to train an employee to watch out for such obvious risks involved in his employment. Williams v. Dowell,