Summary judgment for employer reversed on Virginia law claims of negligent hrring and negligent retention

In Blair v. Defender Services, Inc., the Fourth Circuit in an opinion by District Judge Bennett from Maryland, sitting by designation, joined by Judge King, with Judge Widener dissenting, held among other things that Judge Turk of the W.D. Va. erred in granting summary judgment on claims of negligent hiring and negligent retention against the employer of a janitor who beat a Virginia Tech student on campus. The Court also ruled unanimously that Judge Turk properly granted summary judgment on the plaintiff's respondeat superior claims.

I'm with Judge Widener in this case, my impression is that Virginia case law does not generally require employers to go behind the employee's representation that he does not have a criminal record, absent some other circumstance that would put the employer on notice of the need for further inquiry.

The vicarious liability ruling may also be controversial. The trend in a number of cases following Plummer v. Center Psychiatrists, Ltd., 252 Va. 233, 476 S.E.2d 172 (1996) was toward less consideration of the subjective motivation of the employee, with more emphasis on whether the circumstances of his employment brought him in contact with the plaintiff. Some federal courts expressed the view that Plummer “may have altered significantly the law of respondeat superior in Virginia.” Kidwell v. Sheetz, Inc., 982 F. Supp. 1177, 1187 n.3 (W.D.Va. 1997); Webb v. U.S., 24 F. Supp.2d 608, 613 (W.D.Va. 1998) (“In 1995 and 1996 the Supreme Court of Virginia decided two cases generally understood to alter the respondeat superior doctrine in Virginia”). Judge Bennett's opinion cites a pair of post-Plummer decisions that seem to be at odds with the analysis in Plummer.