Failure to Supervise Theory Fails Again

The United States Federal Courts in Virginia continue to interpret Virginia law as not recognizing an independent tort for negligent supervision. While it is contrary to some state circuit court decisions indicating that Virginia may yet recognize the tort under certain factual circumstances, recently decided cases seem to show the Virginia courts are moving  further away from recognizing negligent supervision as a cause of action.

The claim for negligent supervision was most recently addressed by the United States District Court for the Western District of Virginia (Charlottesville) in the matter of MCI Communications Services, Inc. v. MasTec North America (Moon),No. 3:17cv00009  May 24, 2017.  In MCI Communications, the district court granted defendant’s 12(b)(6) motion to dismiss plaintiff’s negligence claim based on a failure to train or supervise theory.  Plaintiff MCI had fiber-optic cables buried in VDOT right of ways along certain railroad tracks.  MasTec North America, Inc., is an excavating company that was using excavation equipment near the right-of-way and severed the MCI cable which interrupted service.  MCI alleged that MasTec’s negligent acts included failing to train its employees on regulatory and safety standards and failing to supervise its employees to ensure compliance.

Judge Moon noted that Virginia’s recognition of negligent supervision claims is uncertain.  He discussed recent Federal Court decisions which have construed Virginia Supreme Court precedent to hold that there is no cause of action for negligent supervision in Virginia while a minority of state courts limit that precedent to its facts.  The precedent to which Judge Moon referred to is Chesapeake & Potomac Tec. V. Dowdy, 235 Va. 55, 61, 365 S.E.2d 751, 754 (1988).  In Dowdy, the Virginia Supreme 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.”

Judge Moon cited Chief Judge Conrad’s decision in Jones v. Krogers Ltd P. in his holding in MCI Communications.  In Jones, Judge Conrad stated that the “vast majority of courts have interpreted [Virginia Supreme Court precedent] as foreclosing any cause of action for negligent supervision in Virginia,” while a small handful of Virginia circuit courts have speculated that [theory may not have been] completely ruled out.  80 F. Supp. 3d 709, 714 n.2 (W.D. Va. 2015).

In further concluding that a negligence claim cannot survive on a failure to supervise theory, Judge Moon relied upon Chief Judge Dorsey of the Roanoke County Circuit Court’s opinion In re Gilbertson v. Purdham, 78 Va. Cir. 295, 2009 WL 7339865 at *2-3 (Cir. Ct. Roanoke Cty. 2009).  Judge Dorsey held that “[f]ederal courts have construed [Virginia Supreme Court precedent] to hold that there is no cause of action for negligent supervision in Virginia… Some state courts, on the other hand, have limited that precedent to its facts… The holdings of these courts, however, represent the minority position, as the majority of state courts have interpreted the precedent as foreclosing any cause of action for negligent supervision in Virginia.

Based upon these recent decisions, defendants should be preparing their motions to be dismiss and demurrers in response to negligent supervision claims.

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