Q. Can an employer be held liable to a third person for negligent training of its employee in Virginia?
While many would answer that question in the negative, those individuals would be grossly overgeneralizing the language used by the Virginia Supreme Court in Chesapeake & Potomac Tel. Co. v. Dowdy, 235 Va. 55, 56, 365 S.E.2d 751, 4 Va. Law Rep. 1978 (1988). Dowdy did not hold that there is no duty of an employer to supervise an employee; it merely held that no duty existed under those circumstances. Id., at 56. “[T]he 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.”); Banach v. Benton, 74 Va. Cir. 233 (Portsmouth 2007).
At least that is the finding of one Circuit Court in Virginia:
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., 39 Va. Cir. 314 (1996); see also Mangum v. Providence Hall Assocs., No. 131955, 1995 Va. Cir. LEXIS 1418, *2-3 (Fairfax County Jan. 11, 1995) (overruling defendant’s demurrer “because the facts alleged here are not as limited as those present in Dowdy.”). In Johnson-Kendrick, the plaintiff’s supervising and training manager sexually assaulted her. Overruling the defendant’s demurrer, Judge John Morrison of this Court, noted that “[t]he [Supreme Court] did not opine that there would never be a situation in which an employer would have a duty to supervise an employee.” Johnson-Kendrick, 39 Va. Cir. at 319. In another case, Garcia v. B & J Trucking, Inc., 80 Va. Cir. 633 (Sussex County 2010), the Court sustained the defendant’s demurrer finding no duty to supervise its employee. However, it noted that the construction given the Dowdy ruling by the cases cited above “takes the quotation out of its full context.” Id. at 635. In Garcia, the court declined to find a duty under factual circumstances which involved an employee truck driver and an employer that operated out of a stationary office: “‘Under these circumstances,’ an employer could not possibly supervise an employee while he operates a tractor trailer along the highway.” Id. The ruling suggests that if it were possible for the employer to supervise the employee in Garcia, the court would have found that a duty to do so existed.
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 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, 205 Va. 757, 761, 139 S.E.2d 793 (1965). Recognition of this general duty has led the Supreme Court of Virginia to recognize liability for negligent hiring and negligent retention. In both contexts, an employer is liable when its failure to use reasonable care foreseeably creates a danger of harm to others. Similarly, negligent supervision is simply another form of liability for negligence.
Hernandez v. Lowe’s Home Ctrs., Inc., 83 Va. Cir. 210, 213-214 (Va. Cir. Ct. 2011).
The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.
Thomas H. Roberts, Esq.
Thomas H. Roberts & Associates, P.C.
105 S 1st Street
Richmond, Virginia 23219
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