Understanding the Impact on Employers of West Virginia’s Formal Recognition of Negligent Supervision Claims

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In a recent important decision, the Supreme Court of Appeals of West Virginia formally recognized that a third party can sue an employer for negligent supervision of an employee, even if the employee’s intentional or reckless conduct is the basis for the claim.

Elements of Negligent Supervision

The Court held that West Virginia has “long recognized” the tort of negligent supervision, a point that the Court had implied previously but had not clearly held. To succeed on such a claim, a plaintiff must prove the traditional elements of negligence: that the employer had a duty to supervise its employee, that the employer breached that duty, and that the breach caused damages. Additionally, a plaintiff must show a tortious act or omission by the employee whose conduct forms the basis of the claim. Whether an employer has a duty to supervise is a “fact-dependent inquiry,” based on factors such as the work performed, the size of the business, and the employer’s clientele. However, for a duty to supervise to exist, the harm caused by the employee must be foreseeable, based on public policy and other considerations.

Intentional or Reckless Conduct

The Court also held that an employee’s intentional or reckless conduct may support a negligent supervision claim, provided the claim meets all the elements of negligence. Thus, if an employer has a duty to supervise an employee to prevent harm to others and negligently fails to do so, the employer may be liable for resulting damages, even if the employee’s conduct was reckless or intentional.

Implication and Recommendations

West Virginia employers should prepare for increased litigation involving third-party claims for negligent supervision based on employees’ negligent, reckless, or intentional conduct. Because the existence of a duty to supervise an employee is a question of fact, courts may be reluctant in some circumstances to dismiss negligent supervision claims early in the litigation, before the parties have engaged in discovery. Further, although the Court’s decision addressed only negligent supervision of employees, courts in other jurisdictions have held that employers may be liable for negligent supervision of independent contractors.

Employers should carefully review their commercial general liability (CGL) and employment practices liability insurance (EPLI) policies to ensure they have coverage for potential negligent supervision claims. Although the question of whether CGL policies cover such claims has not been decided by the Supreme Court of Appeals of West Virginia, courts in California, Ohio, and Texas have held that employers may expect coverage for negligent employment practices, including negligent supervision, unless the policy contains a specific exclusion.

Steptoe & Johnson PLLC’s Labor & Employment attorneys are here to answer your questions and help you navigate the shifting legal landscape concerning negligent supervision and other employment-related claims. Please contact the authors of this alert if you need counsel on negligent supervision claims or any other employment law matters.