What is the Duty of the Employer as to Hiring, Retention, Training and Supervision?
Each of the above categories within the context of employment may be challenging.
Virginia does recognize a duty as to hiring. It also recognizes a duty as to retention. It does not recognize a duty as to training or supervision.
As such you may assert a negligent hiring claim. You may assert a negligent retention claim. However negligent training claims and negligent supervision claims may be dismissed pre-trial.
Does a Claim for Negligent Supervision Exist in Virginia?
The Chesapeake and Potomac Telephone Company of Virginia, et al. v. Dowdy , 235 Va. 55 (1988) states that under the facts of that case, such a claim does not exist. Some Circuits however have allowed negligent supervision claims to proceed based upon the circumstances proven. Hernandez v. Lowe’s Home Centers, Inc, 83 Va. Cir. 210 (2011); Johnson-Kendrick v. Sears, 39 Va. Cir. 314 (1996)
In 2019 the Virginia Supreme Court in A.H. by next Friends C.H. v. Church of God in Christ, Inc., 297 Va. 604 (2019) stated that there is no freestanding cause of action for negligent supervision.
What is Negligent Training?
As the term implies, it involves negligence in terms of training the employee for specific functions. There is no Supreme Court decision recognizing such a claim. At least one circuit has refused to recognize it. Porter v Woods 96 Va Cir 280 (2017).
In Fairshter v. American National Red Cross, 322 F. Supp.2d 646, 654 (E.D. VA 2004), the trial court ruled that Virginia does recognize claims for negligent training and allowed that claim to go to the jury. In addition some circuits have recognized such claims. Bush v. Serco, 92 Va. Cir. 164 (2015); Hernandez v. Lowe’s Home Centers, Inc, 83 Va. Cir. 210 (2011); Garcia v. B & J Trucking, 80 Va Cir 633 (2010); Williams v. Dowell, 34 Va. Cir. 240 (1994)
What is the Benefit of These Types of Claims?
If you already have vicarious liability, why do you need these independent claims? That’s a good question. It may be that proving negligent supervision or negligent training inflames a jury. If you have evidence of that then it probably is worth a shot to present it. RGR, LLC v. Settle, 288 Va. 260 (2014) may also be used to buttress any of these claims. That case comes close to recognizing a generalized duty to do right.
Call, or contact us for a free consult. Also, see the blog referenced for more info on duty issues.
