Customer Can Sue for Negligent Supervision
Published: November 8, 2011
Tags: Junius P. Fulton III, Negligence, Norfolk Circuit Court, Tucker Griffin Barnes
A Lowe’s customer who alleges she suffered a brain injury when a Lowe’s employee climbed a ladder to retrieve an item and dropped a box on plaintiff customer can sue Lowe’s for negligent training and negligent supervision of its employee, as the Norfolk Circuit Court distinguishes this case from the Virginia Supreme Court decision in C&P Tel. Co. v. Dowdy.
The Supreme Court of Virginia has addressed negligent supervision in the employment context only once, in C&P Tel. Co. v. Dowdy, 235 Va. 55 (1988). There, the court held that in Virginia, there is no duty of reasonable care imposed on an employer in the supervision of its employees under the circumstances there, in which an employee alleged stress he suffered was aggravated by negligent supervision of coworkers. Relying on Dowdy, Virginia circuit courts have consistently declined to recognize a distinct tort of negligent supervision. A number of Virginia courts have similarly declined to recognize a cause of action for negligent training.
Plaintiff argues the present case can be distinguished from Dowdy. 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. Plaintiff argues the court in Dowdy did not hold there is no duty to supervise an employee – it merely held no duty existed under those circumstances.
The court agrees the circumstances in Dowdy are distinguishable from those at hand. First, in Dowdy, the claim was the employer and plaintiff’s supervisors negligently supervised the plaintiff.
Dowdy did not address whether an employee 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. Further, it may be argued the court in Dowdy was really declining to carve out an exception to the tactile tort rule for recovery of 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 the conduct was not so wrongful or egregious to allow Dowdy to recover for emotional distress resulting from a non-tactile tort where not physical contact was made by 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.
Plaintiff argues 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 the employee to engage in such activity, serious and foreseeable harm may befall its customers. The harm alleged to have occurred to plaintiff in this case is probably the most foreseeable harm that could have resulted – a box the employee dropped fell on plaintiff. 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.
In conclusion, the Supreme Court of Virginia has not yet recognized a cause of action for negligent supervision or for negligent training. Nor has it completely ruled out such a cause of action under Virginia law. Although only two courts have allowed a case to proceed on such a theory, I am wary of simply following the majority of circuit courts in reliance on Dowdy’s limited ruling. The facts alleged now are quite distinguishable from those in Dowdy and plaintiff’s case may present one for the correct application of the theory of negligent supervision. With respect to negligent training, however, the court will sustain the demurrer with leave to amend.
Hernandez v. Lowe’s Home Centers (Fulton) No. CL 10-8412, Aug. 1, 2011; Norfolk Cir.Ct.; Edward E. Scher, Stephen M. Smith, Jeffrey F. Brooks, Joseph M. Moore for the parties. VLW 011-8-200, 6 pp.