Virginia Lawyers Weekly VA Lawyers Weekly
A cleaning company employee who was electrocuted while wiping down an electric junction box can bring a negligent supervision claim against an electrical repair company, a Norfolk circuit judge has ruled.
Norfolk remains one of the few jurisdictions in Virginia to recognize a negligent supervision claim. While a number of circuits have rejected the claim, relying on a 1988 Virginia Supreme Court decision, Norfolk judges have twice distinguished the facts of that case to allow a lawsuit to go forward.
The case is Bush v. Serco Inc. (VLW 015-8-121), with a letter opinion from Judge Michelle J. Atkins.
No lockout tags
The plaintiff, Thomas Bush, worked for a cleaning company that did work on the U.S.S. Normandy.
Another subcontractor, Serco Inc., was hired by the general subcontractor to perform electrical repairs and maintenance. Bush alleged that his employer had told him to be on the lookout for lockout tags or red flags that indicated danger or a hazardous condition.
One day in March 2013, Bush went into the Combat Information Center on the ship to clean; he said he did not see any lockout tags. He climbed a ladder and started to wipe the top of an electrical junction box with a damp cloth.
He was shocked badly and fell off the ladder. After the fall, he observed exposed electrical wire ends that he believed were in contact with the metal box.
He filed suit, alleging a number of negligence claims.
While Atkins ruled that a number of the allegations lacked factual specifity, she allowed a “catch-all” negligence claim. In the last allegation, Bush sued for “other acts deemed negligent.”
Citing a 1991 Virginia Supreme Court case, Russo v. White, Atkins said that was enough to keep going.
Specifically addressing the negligent supervision claim, Atkins wrote that Serco argued that Virginia does not allow this cause of action, citing Chesapeake & Potomac Telephone Co. v. Dowdy, 235 Va. 55 (1988).
However, Atkins wrote that the court itself distinguished the Dowdy facts as involving an employee having trouble coping with a workplace, a situation very different from “safe-place-to-work cases.”
“Although a majority of circuit courts have declined to recognize negligent supervision as a cause of action, those holdings are not binding on this Court,” Atkins wrote.
She distinguished the Dowdy case, observing that “this Court has previously permitted a cause of action of negligent supervision.”
Indeed, Norfolk Circuit Judge Junius Fulton III in 2011 allowed the cause of action, finding a similar distinction in the facts in Hernandez v. Lowe’s Home Ctrs. Inc.
Atkins overruled the demurrer on the negligent supervision claim.
Bush is represented by Christian Connell and Richard J. Conrod Sr., both of Virginia Beach.
Connell noted that the Dowdy case was one in which an employee sued his own employer, complaining about a supervisor’s behavior.
“Defense attorneys have done a great job convincing judges” that a negligent supervision claim doesn’t exist in Virginia, based on Dowdy, he said.
It is an overstatement to say the high court has allowed negligent supervision to go forward, but “they have alluded to that type of claim” several times, he said. “Why would they say that if the claim didn’t exist?”
Serco’s counsel is Naomh M. Hudson of Williamsburg, who could not be reached for comment.
