Chesapeake and Potomac Telephone Co. of Virginia v. Dowdy, 850005

• Decision Date: 04 March 1988
• Docket Number: No. 850005,850005
• Parties: , 3 IER Cases 19 The CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF VIRGINIA, et al. v. H. Lee DOWDY, Jr. Record
• Court: Virginia Supreme Court

Page 751

365 S.E.2d 751

235 Va. 55, 3 IER Cases 19

The CHESAPEAKE AND POTOMAC TELEPHONE COMPANY OF VIRGINIA, et al. v. H. Lee DOWDY, Jr.

Record No. 850005.

Supreme Court of Virginia.

March 4, 1988.

Palmer S. Rutherford, Jr. (James C. Howell; Willcox & Savage, P.C., Norfolk, on briefs), for appellants.

Carter B.S. Furr (Jett, Agelasto, Berkley, Furr & Price, Norfolk, on brief), for appellee.

Present: POFF, COMPTON, STEPHENSON, RUSSELL, THOMAS and WHITING, JJ.

COMPTON, Justice.

This is the appeal of a damage suit in which the plaintiff seeks recovery for mental suffering and associated physical illness. The dispositive question is whether the common law of Virginia recognizes a tort of negligent supervision of an employee by the employer and its managerial personnel.

In 1983, appellee H. Lee Dowdy, Jr., brought this action against the appellants The Chesapeake & Potomac Telephone Company of Virginia, Leslye A. Miller, and Frank E. Ragland (sometimes collectively, C & P). The plaintiff had been an employee of C & P as a communications representative in C & P's Norfolk office. Miller and Ragland, C & P employees, had been the plaintiff's supervisors.

In five counts, the plaintiff sought recovery for: (1) intentional and malicious infliction of bodily harm and emotional distress; (2) conspiracy to "unlawfully, purposely, willfully and maliciously" injure the plaintiff; (3) wrongful interference with the contractual relationship between plaintiff and the company; (4) negligent supervision resulting in aggravation of physical and mental suffering; and, (5) "reckless, willful and malicious" conduct requiring assessment of punitive damages.

Pretrial, the court denied a motion for summary judgment filed by C & P which asserted that federal labor law preempted State jurisdiction. The case was tried to a jury in 1984 over a six-day period. At the conclusion of his evidence, the plaintiff nonsuited counts 2 and 3, and the trial court sustained C & P's motion to strike the plaintiff's evidence on counts 1 and 5. A like motion by C & P on count 4 was overruled. The jury found in favor of the plaintiff and assessed his damages at $44,000, upon which the trial court entered judgment.

We awarded C & P this appeal from the October 1984 judgment order. We limited the issues to consideration of (1) the court's denial of C & P's pretrial motion for summary judgment and (2) the court's recognition of a cause of action for negligent supervision. We also awarded an appeal on plaintiff's assignments of cross-error challenging the striking of counts 1 and 5 and raising an issue of damages in connection with one instruction.

We do not reach for decision the jurisdictional issue because of insufficiency of the record. C & P contends that the plaintiff was a member of a labor union which was the recognized bargaining unit for all C & P employees. As such, C & P argues, he was subject to the benefits and obligations of a general agreement in effect between the union and C & P. C & P contends that in his pleadings plaintiff acknowledges he was engaged in arbitration proceedings, pursuant to the bargaining agreement, for alleged wrongful termination of his employment. C & P asserts that the conduct of which plaintiff complains in the present action is encompassed fully by the provisions of the agreement and that federal law preempts state-law claims of the nature involved in this action.

C & P's assignment of error on this issue states that the trial court erred in failing to grant summary judgment "on the issue of the exclusivity of the remedy contained in the collective bargaining agreement between Defendant C & P and the Plaintiff's union." But the agreement on which this contention is based is not a part of the record on appeal and was never introduced in evidence. Indeed, the record shows that only several pages of this apparently lengthy document were exhibited to the trial judge; those pages, never marked as an exhibit, are copied in the appendix.

Even though the assignment of error, as well as C & P's argument on brief, is keyed to the contents of the agreement, C & P changed its position during oral argument, stating that the contents of the document were irrelevant to a decision of the issue. The argument now is that the mere existence of such an agreement is dispositive of the preemption question. Without ruling on the validity of that new contention, we refuse to address an argument which focuses on the contents of a document which is not before us.

Moving to the dispositive issue in the appeal, we will set the stage by summarizing the trial court's instruction placing the theory of negligent supervision before the jury. The court charged the jury that "defendants were under a duty to exercise reasonable care under all the circumstances then and there existing in their supervision of plaintiff." The court further told the jury that if "the defendants knew or in the exercise of reasonable care should have known that their conduct would result in stress that aggravated plaintiff's illness, but thereafter acted unreasonably in supervising plaintiff so as to aggravate his illness, then this constituted negligence." Finally, the court required the jury to find by clear and convincing evidence that any such negligence was the proximate cause of plaintiff's damages, if any.

The plaintiff had been employed by C & P for approximately twelve and one-half years when he was discharged by the company in July 1982 for excessive absenteeism. According to the evidence, he missed the following work days: in 1978, 49 days; in 1980, 11 days; in 1981, 103 days; and in 1982 prior to discharge, 60 days. The plaintiff contended that he was prevented from working regularly because of a physical illness known as spastic colitis, also called "irritated bowel syndrome." According to the plaintiff, the illness caused severe diarrhea, constant stomach cramping, and nausea. He said attacks of the malady were brought on by "undue stress."

As a communications representative, the plaintiff was involved with the design, layout, pricing, coordination, sale, and installation of telephones and telephone equipment for commercial customers. According to the plaintiff, he was successful in his job until he "encountered" defendants Miller and Ragland as supervisors. Ragland became a "second-level" supervisor over plaintiff in late 1977 while Miller arrived on the scene as a "first-level," immediate superior in October 1981. According to the plaintiff, he "had spotty problems" with his illness prior to 1977. His condition worsened, however, in early 1978 and continued to deteriorate because of the stress imposed upon him by the company through Miller and Ragland, he testified.

The plaintiff asserted that the conduct of Miller and Ragland demonstrated a change in attitude of the company toward him and his job, indicating to him that "a case was being made and built" to terminate him as an employee. For example, plaintiff said there was "continual nit-picking of every move" he made and "playing...