Misty Elrod v. Busch Entertainment Corp

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:09-cv-00164-RBS-FBS Copies to all parties and the district court/agency. [998883958].. [12-1024]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-1024

MISTY PETROSKY ELROD; JANE DOE #1, an infant then the age
of eleven years, by Shannon Middleton, her mother and next
friend; JANE DOE #2, an infant then the age of eleven
years, by Naissa Araujo, her mother and next friend,
Plaintiffs - Appellants,
v.
BUSCH ENTERTAINMENT CORPORATION,
SANDEEP DEEPAK AGARWAL,

d/b/a

Water

County

USA;

Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News.
Rebecca Beach Smith,
Chief District Judge. (4:09-cv-00164-RBS-FBS)

Submitted:

June 19, 2012

Before WILKINSON and
Senior Circuit Judge.

THACKER,

Decided:

Circuit

Judges,

June 27, 2012

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Kevin P. Shea, Christina E. James, KEVIN P. SHEA & ASSOCIATES,
Hampton, Virginia, for Appellants. David C. Bowen, Aminah M.
Collick, WILLCOX & SAVAGE, P.C., Norfolk, Virginia, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Appellants Misty Petrosky Elrod, Jane Doe #1, and Jane
Doe #2 appeal the district court’s order sustaining objections
to the magistrate judge’s report and denying Appellants leave to
amend their complaint to include a claim of negligent retention.
The district court denied the amendment as futile, finding that
a claim of negligent retention does not support recovery for
emotional

harm

injury.

On

absent
appeal,

a

showing

Appellants

of

contemporaneous

argue

that

their

physical
proposed

amendment was not futile, as the tort of negligent retention
does not require a showing of physical injury.

We affirm.

A trial court is permitted to deny leave to amend a
complaint if the proposed amendment would be futile.
Harvey,

438

F.3d

404,

426

(4th

Cir.

2006)

(en

Laber v.

banc).

An

amendment would be futile if the complaint, as amended, would
not withstand a motion to dismiss.

Katyle v. Penn Nat’l Gaming,

Inc., 637 F.3d 462, 471 (4th Cir. 2011), cert. denied, 132 S.
Ct. 115 (2011).

We review a district court’s denial of leave to

amend a complaint for abuse of discretion.
428;

see

L.J.

v.

Wilbon,

633

F.3d

Laber, 438 F.3d at

297,

304

(4th

Cir.)

(discussing standard of review), cert. denied, 132 S. Ct. 757
(2011).
Virginia

law

case

law

generally

recognizes

that

a

plaintiff may not recover for emotional injury resulting from
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the

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defendant’s

physical injury.

negligence

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without

proof

of

contemporaneous

See Myseros v. Sissler, 387 S.E.2d 463, 466

(Va. 1990); Hughes v. Moore, 197 S.E.2d 214, 219 (Va. 1973);
Bowles v. May, 166 S.E. 550, 555 (Va. 1932).

The Virginia

Supreme Court has not specified whether this rule applies to
claims of negligent retention, and lower courts have reached
differing results on this issue.

Compare, e.g., Thompson v.

Town of Front Royal, 117 F. Supp. 2d 522, 531-32 (W.D. Va. 2000)
(finding claim not asserting physical injury sufficient), with
Investors Title Ins. Co. v. Lawson, 68 Va. Cir. 337, at *1-2
(2005) (finding Virginia Supreme Court would more likely hold
that physical harm is required for negligent retention).

The

Virginia appellate courts have not clearly limited the Hughes
physical injury requirement to any particular class of negligent
conduct,

instead

construing

the

rule

in

broad

terms.

Hughes, 197 S.E.2d at 219; Bowles, 166 S.E. at 555.

See

Thus, in

the absence of clear case law providing for extended recovery in
negligent retention claims, we conclude that the district court
did not abuse its discretion in finding the proposed amendment
to be futile.
Accordingly, we affirm the district court’s judgment.
We

dispense

with

oral

argument

3

because

the

facts

and

legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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