Beyond Ordinary Negligence: West Virginia Formally Adopts Negligent Supervision and Extends Employer Liability to Intentional & Reckless Employee Torts

1. Introduction

The Supreme Court of Appeals of West Virginia, in Camden-Clark Memorial Hospital, Inc. v. Marietta Area Healthcare, Inc. (No. 23-569, 11 June 2025), answered certified questions from the United States District Court for the Northern District of West Virginia. Though the opinion contained a concurrence and partial dissent by Justice Bunn, the majority opinion—through three new syllabus points—has cemented two major propositions:

West Virginia now expressly recognizes an independent cause of action for negligent supervision.
An employer’s negligent supervision may give rise to liability even when the employee’s underlying tort is intentional or reckless.

The certified questions arose in a sprawling dispute where Marietta health-care entities (Respondents/Plaintiffs) alleged that Camden-Clark and associated West Virginia University health entities (Petitioners/Defendants) negligently failed to supervise their personnel who allegedly initiated and pursued a qui tam (whistle-blower) action and related federal investigation against Marietta. The district court stayed proceedings and certified three legal questions to the state’s highest court.

2. Summary of the Judgment

The majority opinion (not reproduced in full in the excerpt) held:

Recognition: West Virginia law recognizes the tort of negligent supervision.
Elements: The elements mirror traditional negligence—duty, breach, causation, damages—plus proof that the employee committed a “tortious act or omission.”
Scope: That “tortious act or omission” may be negligent, reckless, or intentional; an employer’s negligent supervision duty is not automatically cut off by the employee’s intentional misconduct.

Justice Bunn joined in items (1) and (2) but dissented as to item (3), arguing it was unnecessary to answer and will seldom apply. Nevertheless, the new syllabus point covering intentional and reckless torts now stands as binding precedent under West Virginia’s vertical stare decisis rules.

3. Analysis

3.1 Precedents Cited

City of Huntington v. AmerisourceBergen Drug Corp. (2025) – Clarified that certified questions must “substantially control the case.” Justice Bunn relied on this to argue that the third certified question was superfluous.
Bass v. Coltelli (1994) & Smith v. Consolidated Public Retirement Board (2008) – Earlier discussions of certification procedure; cited to underscore procedural restraint.
Moore Charitable Foundation v. PJT Partners, Inc. (N.Y. 2023) – Quoted for the requirement of a nexus between the employer’s negligence and the employee’s ability to inflict harm.
Dicken v. Liverpool Salt & Coal Co. (1895) & Wheeling Park Comm’n v. Dattoli (2016) – Recited for the truism that negligence is contextual and fact-specific.
C.C. v. Harrison County Board of Education (2021) – Justice Hutchison’s separate opinion supplied the language used in the new syllabus point extending liability to intentional acts.

The majority wove these authorities together to both (a) legitimize the certified-question procedure, and (b) justify extending common-law negligence principles to include employer oversight of intentional wrongdoing.

3.2 Legal Reasoning

The court’s reasoning proceeds in two tracks:

Adoption of Tort: Observing that many jurisdictions already recognize negligent supervision, the majority found no doctrinal barrier in West Virginia’s common law. Employers already owe duties to select competent employees (negligent hiring) and to retain/keep safe workplaces (negligent retention). Supervision, the court said, is the logical third pillar.
Intentional & Reckless Torts: The majority rejected a categorical bar on liability for intentional employee acts, reasoning that if an employer owed a supervisory duty and breached it, the nature of the employee’s tort—negligent, reckless, or intentional—is irrelevant to the employer’s own negligence. Public policy favours incentivizing employers to monitor employees whose positions enable them to commit foreseeable harm.

Justice Bunn criticized this second track as dicta: once the majority declared that an underlying “tortious act” is an element, the district court could itself decide whether the facts involved an intentional act; there was, in his view, no need for the state court to pronounce a universal rule.

3.3 Impact

The decision reshapes West Virginia tort law in three principal ways:

Creates New Employer Exposure. Employers face potential liability where their own supervisory failures enable intentional wrongdoing—e.g., data theft, sexual assault, or, as alleged here, abuse of legal process.
Risk-Management Imperative. Human-resources policies, monitoring of professional licensure, email audits, and whistle-blower protocols will likely become more rigorous. Insurers may re-evaluate coverage for negligent supervision claims.
Litigation Strategy. Plaintiffs will add negligent supervision counts as a direct cause of action rather than relying solely on vicarious liability (respondeat superior). Conversely, defendants will emphasize unforeseeability and lack of “nexus” to counter claims.

Practitioners should note Justice Bunn’s admonition: negligent supervision remains a “narrow and highly fact-dependent” theory. Plaintiffs must still prove foreseeability, breach, and causation on a case-by-case basis.

4. Complex Concepts Simplified

Certified Question: A federal or sister-state court may ask a state’s highest court to clarify unsettled state law. The state court answers the abstract legal question, not the facts.
Negligent Supervision: A claim that an employer failed to reasonably oversee an employee, thereby allowing the employee to commit a tort that harms a third party.
Tortious Act or Omission: Any civil wrong—negligence, recklessness, or intentional misconduct—that causes harm.
Intentional vs. Reckless vs. Negligent:
- Negligent: Failing to use ordinary care.
- Reckless: Acting with conscious disregard of a substantial risk.
- Intentional: Acting with purpose to bring about harm.
Nexus Requirement: Plaintiffs must show a causal connection between the employer’s supervisory failure and the employee’s ability to inflict the injury.

5. Conclusion

Camden-Clark v. Marietta ushers in a new era for West Virginia tort law. By (1) expressly recognizing negligent supervision and (2) refusing to exempt employers when the underlying employee conduct is intentional or reckless, the court has expanded potential liability while reinforcing the importance of diligent oversight in the modern workplace. Although Justice Bunn warns the application will be “quite rare,” the doctrinal door is now open. Future litigants and employers alike must navigate this evolving terrain, balancing robust supervision against the practical limits of controlling human behavior. In the broader legal landscape, West Virginia now aligns with (and in some respects pushes beyond) the trend toward holding organizations directly accountable for systemic lapses in supervision that enable harmful acts—no matter how willful the employee’s conduct may be.