Negligence – Negligent Retention – Emotional Distress – Employee Sexual Assault

A former employee of defendant Hanover Research Council who alleges he was sexually assaulted and battered by HRC’s founder/CEO can sue for negligent infliction of emotional distress; a Fairfax Circuit Court says the negligent infliction claim is not time-barred, as it relates back to the original complaint’s assertion of a claim for intentional infliction of emotional distress.

Plaintiff’s claim for negligent infliction of emotional distress in his amended complaint is not time-barred; it relates back to the original complaint and is not a new substantive cause of action.
Intentional infliction of emotional distress requires that 1) the wrongdoer’s conduct was intentional or reckless; the conduct was outrageous and intolerable and offends against generally accepted standards of decency and morality; the wrongdoer’s conduct caused the emotional distress and the emotional distress was severe.

For a negligent infliction of emotional distress claim, a plaintiff must prove all the elements of intentional infliction plus a showing of either a physical impact or physical injury. Here, the amended complaint altered the cause of action from intentional infliction to negligent infliction. Yet, the only true difference between the two claims is that negligent infliction requires a physical harm.

The amendment does not allege a new substantive cause of action. The injuries complained of in the complaint and the amended complaint, namely, that defendant CEO committed a sexual assault upon plaintiff, are the same. Thus, the amended complaint only varied the mode of demanding the same relief.

Further, the standards under Va. Code § 8.01-6.1 have been met because the negligence claim arises out of the same transaction or occurrence. Plaintiff was reasonably diligent in asserting his claim – it was added in the amended complaint after the original complaint was sustained with leave to amend. No prejudice will occur by permitting plaintiff to argue a claim that in essence remains essentially the same.

Because the amendment is not a new substantive cause of action, the negligent infliction claim relates back to the date of the original complaint, and the statute of limitations is not a bar. The demurrer is overruled.

The breach of contract claim survives because the employment agreement addresses rights to company stock through additional compensation.

On demurrer, the sole question to be decided by the court is whether the facts pleaded, implied and fairly and justly inferred, are legally sufficient to state a cause of action against defendant. Defendant HRC asserts plaintiff’s amended complaint is insufficient because stock options are mentioned nowhere in the Employment Agreement. Here, the alleged legally enforceable obligation is the right to stock options. In the Employment Agreement, the section titled Employee Compensation states the employee understands and agrees that any additional compensation to the employee (whether a bonus or other form of additional compensation) will rest in the sole discretion of the employer and the employee will not earn or accrue any right to additional compensation by reason of the employee’s agreement.

Admitting plaintiff’s assertions as true on demurrer, the stock options can be viewed as a “bonus or other form of additional compensation.” The elements for breach of contract have been met in the amended complaint.

Because the statute of limitations is not a bar to the negligent infliction of emotional distress claim, and because the elements of a breach of contract have been met, HRC’s demurrer is overruled.

Ballard v. The Hanover Research Council (Ney, J.) Law No. 2010-3122, Sept. 24, 2010; Fairfax Cir.Ct.; Daniel B. Krisky, Matthew H. Sorenson for the parties. VLW 010-8-199, 8 pp.