Opinion
Docket No.: CL17-971
08-30-2017
BRIAN K. PORTER, Plaintiff, v. JARRI A. WOODS and ACCURATE MARINE ENVIRONMENTAL, INC., Defendants.
ORDER SUSTAINING DEMURRER
Defendants Jarri A. Woods and Accurate Marine Environmental, Inc. ("Accurate Marine") filed a demurrer (the "Demurrer") to the claims against them of negligent supervision (the "Negligent Supervision Count"), negligent training (the "Negligent Training Count"), and negligent investigation (the "Negligent Investigation Count") as alleged in the Amended Complaint filed by Plaintiff Brian K. Porter. Defendants claim that Virginia law does not recognize such claims.
Although the Demurrer was filed by both Woods and Accurate Marine, it challenges claims made against only Accurate Marine.
The Court heard argument by the parties at a hearing on July 20, 2017 (the "Hearing"), after the matter was fully briefed. The Court holds that Virginia does not recognize the tort of negligent supervision and finds that—even assuming, arguendo, that negligent training and negligent investigation were cognizable causes of action in Virginia—Porter has failed to sufficiently allege such claims. The Court therefore SUSTAINS the Demurrer.
BACKGROUND
Porter was "crossing the street" near the intersection of Claremont and Warrington Avenues—public streets in the City of Norfolk—on or about August 15, 2015, when a vehicle driven by Woods struck him. (Am. Compl. ¶¶ 1-3.) Woods allegedly was driving an Accurate Marine pickup truck at the time and was acting within the scope of his employment with Accurate Marine. (Id. ¶¶ 2, 11.) As a result of the impact, Porter claims to have sustained significant, and perhaps permanent, injuries. (Id. ¶ 7.) Porter asserts, inter alia, that Accurate Marine failed to provide proper "training, monitoring and supervising" in the "safe uses and operation on public highways of its vehicles driven by employee drivers such as . . . Woods." (Id. ¶ 12.) Porter also contends mat Accurate Marine "failed to adequately investigate" this and other accidents "in attempting [sic] to find the root cause of personal injury as it relates to the negligent use of company vehicles"; "failed to conduct any investigation that would isolate and determine policy changes from the root cause investigation"; and that any investigation "failed in that it did not allow [Accurate Marine] to adequately train its employees, monitor and supervise its employees arising out of lessons learned and/or root cause analysis, from instances involving personal injury while using company vehicles." (Id. ¶¶ 13-15.) Defendants subsequently demurred to Porter's claims of negligent supervision/monitoring, negligent training, and negligent investigation.
It is unclear from the Amended Complaint whether Porter was crossing Claremont Avenue, Warrington Avenue, or both.
The Court cannot discern any distinction between Porter's claims of negligent supervision and negligent monitoring. There are no distinguishing facts in the Amended Complaint, and although Porter addresses his negligent supervision claim in his opposition brief, he makes no mention of negligent monitoring. For purposes of the Demurrer, the Court finds the two claims to be synonymous under the facts alleged and therefore treats them collectively as a claim for negligent supervision.
STANDARD OF REVIEW
A demurrer tests the legal sufficiency of the claims stated in the pleading challenged. Dray v. New Mkt. Poultry Prods., Inc., 258 Va. 187, 189, 518 S.E.2d 312, 312 (1999). The only question for the court to decide is whether the facts pleaded, implied, and fairly and justly inferred are legally sufficient to state a cause of action against the defendant. Thompson v. Skate Am., Inc., 261 Va. 121, 128, 540 S.E.2d 123, 126-27 (2001). On demurrer, the court must admit "the truth of all material facts properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred from the alleged facts." Cox Cable Hampton Rds., Inc. v. City of Norfolk, 242 Va. 394, 397, 410 S.E.2d 652, 653 (1991). A demurrer does not admit the correctness of any conclusions of law, however. Ward's Equip., Inc. v. New Holland N. Am., Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997).
Even if imperfect, a complaint drafted such that a defendant cannot mistake the true nature of the claim should withstand demurrer. CaterCorp, Inc. v. Catering Concepts, Inc., 246 Va. 22, 24, 431 S.E.2d 277, 279 (1993). The court will not consider any factual assertions not included in the pleading being attacked, or its accompanying exhibits, for purposes of a demurrer. See id. at 24, 431 S.E.2d at 279. If a court sustains a demurrer, it is within the court's discretion to allow leave to amend the complaint, and such leave "shall be liberally granted in furtherance of the ends of justice." Va. Sup. Ct. R. 1:8.
ANALYSIS
Having considered the pleadings, the evidence and oral argument presented at the Hearing, and applicable authorities, the Court rules as follows. A. Virginia Does Not Recognize the Tort of Negligent Supervision.
This Court recently held in Cleaves-McClellan v. Shah that Virginia does not recognize negligent supervision as a cause of action. 93 Va. Cir. 459 (Norfolk 2016). There, the Court opined as follows:
The viability of a negligent supervision claim in Virginia is unclear despite being addressed by the Supreme Court of Virginia previously. In Chesapeake & Potomac Telephone Co. v. Dowdy, the Court held that "[i]n 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." 235 Va. 55, 61, 365 S.E.2d 751, 754 (1988) (emphasis added). Despite the apparently limiting language, Virginia circuit courts and federal courts applying Virginia law routinely interpreted Dowdy to hold that negligent supervision is not a cause of action in Virginia. See Lawrence v. Sentara Hosps.-Norfolk, 90 Va. Cir. 232, 233 (Norfolk 2015) (summarizing the current circuit court split regarding the recognition of Virginia negligent supervision claims).Id. at 474-75.
Although no case of precedential value has emerged clarifying the holding in Dowdy and thereby settling the question of whether negligent supervision is actionable in Virginia, the Supreme Court of Virginia issued an unpublished order in 2013, wherein it simply stated that "Virginia does not recognize a claim for negligent supervision." Williams v. Shall, et al., N. 120889, *3 (Va. June 6, 2013) (citing Dowdy, 235 Va. 55, 365 S.E.2d 751). Although unpublished, the Court finds the Supreme Court's interpretation of its own case law highly persuasive and indicative that in the future it likely will formally declare that negligent supervision claims are not cognizable in Virginia. The Court therefore agrees with the majority of Virginia circuit courts and holds that negligent supervision is not a recognized cause of action in Virginia.
The Court has found nothing since its decision in Cleaves-McClellan v. Shah—and Porter has not identified any authority—to change its opinion that negligent supervision is not actionable in Virginia. Even if negligent supervision were a recognized cause of action, the facts alleged here—i.e., an employee driving a company pickup truck—almost certainly would not support such a claim, as direct company supervision normally would not be expected. Cf. Hernandez v. Lowe's Home Ctrs., Inc., 83 Va. Cir. 210 (Norfolk 2011) (opining, in a case in which an employee dropped an object on a shopper, that a negligent supervision claim might exist where the employer could directly supervise its employees while they engaged in a "dangerous activity," e.g., climbing ladders to reach heavy items on high shelves in a retail store).
As Defendants concede, "[u]nder a theory of respondeat superior, the employer [nevertheless] can be found negligent for the actions of its employees while working within the scope of employment[,]" precluding the need to create a separate legal duty to impose on the employer. (Defs.' Br. in Supp. of Mot. to Sustain Dem. 4.)
The Court therefore SUSTAINS the Demurrer as to the Negligent Supervision Count and dismisses the Negligent Supervision Count with prejudice. B. Porter Has Failed to Sufficiently Plead a Claim for Negligent Training.
Porter has not identified any authority supporting recognition of his negligent training claim, and the Court is not aware of any Virginia appellate cases that have addressed whether Virginia recognizes negligent training as a viable cause of action. Numerous Virginia circuit courts have declined to recognize such a claim, however. See Hernandez, 83 Va. Cir. at 212 (citing cases). More specifically, circuit courts have dismissed negligent training claims in the context of employee drivers. See, e.g., Garcia v. B & J Trucking, Inc., 80 Vir. Cir. 633 (Sussex Cty. 2010) (involving an employee tractor trailer driver); Banach v. Benton, 74 Vir. Cir. 233 (Portsmouth 2007) (involving an employee pizza delivery driver). As the Garcia court opined, to the extent a negligent training action might exist, "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, 80 Va. Cir. at 634 (interpreting Sadler v. Lynch, 192 Va. 344, 64 S.E.2d 664 (1951), but ultimately concluding that "it does not appear that there is a positive legal duty for an employer to train and instruct its employee").
In fact, Porter failed to address his negligent training claim at all in his opposition brief.
Here, the incident giving rise to Porter's claim stems from Woods's allegedly negligent operation of an Accurate Marine pickup truck. Nothing in the Amended Complaint alleges that driving the pickup truck required specialized skills or that the operation of the pickup truck involved risks about which Woods was reasonably unable to understand.
The Court therefore SUSTAINS the Demurrer as to the Negligent Training Count and dismisses the Negligent Training Count without prejudice. Assuming—only for purposes of the Demurrer—that a negligent training claim is cognizable, the Court grants Porter leave to amend his Amended Complaint to plead facts to properly justify a negligent training claim, should such facts exist. C. Porter Has Failed to Sufficiently Plead a Claim for Negligent Investigation.
Porter has not identified any authority supporting recognition of his negligent investigation claim, and the Court is not aware of any cases that have held that Virginia recognizes negligent investigation as a viable cause of action in the context of facts similar to those present here. The Amended Complaint also is devoid of any authority establishing that Accurate Marine had a duty to investigate or any facts alleging that Accurate Marine's alleged failure to investigate proximately caused Porter's injuries. See Collett v. Cordovana, 290 Va. 139, 146, 772 S.E.2d 584, 588 (2015) (quoting Delk v. Columbia/HCA Healthcare Corp., 259 Va. 125, 132, 523 S.E.2d 826, 830 (2000)) ("A plaintiff who seeks to establish actionable negligence must plead the existence of a legal duty, violation of a legal duty, and proximate causation which results in injury.").
Porter also failed to address his negligent investigation claim at all in his opposition brief. --------
The Court therefore SUSTAINS the Demurrer as to the Negligent Investigation Count and dismisses the Negligent Investigation Count without prejudice. Assuming—only for purposes of the Demurrer—that a negligent investigation claim is actionable, the Court grants Porter leave to amend his Amended Complaint to plead both authority establishing Accurate Marine's duty to investigate and facts properly justifying a negligent investigation claim, should such facts exist.
CONCLUSION
Based on the foregoing, Defendants' Demurrer to Porter's claims of negligent supervision, negligent monitoring, negligent training, and negligent investigation is SUSTAINED. Any objections to this Order shall be submitted to the Court within fourteen days. Endorsements are waived pursuant to Rule 1:13. The Clerk shall mail or email copies of this Order to all counsel of record.
IT IS SO ORDERED this 30th day of August, 2017.
/s/_________
David W. Lannetti
Circuit Court Judge