Misty Elrod v. Busch Entertainment, No. 12-1024 (4th Cir. 2012)
Annotate this Case
Download PDF
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1024 MISTY PETROSKY ELROD; JANE DOE #1, an infant then the age of eleven years, by Shannon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 THACKER, Decided: Circuit Judges, June 27, 2012 and HAMILTON, Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit. 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 2 the defendant s physical injury. negligence 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 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
