Kilburn v. VCAM Commentary: A New Path for Emotional-Distress Recovery in Negligent-Supervision Actions

Introduction

Ciara Kilburn & Brona Kilburn v. Bill Simmon & Vermont Community Access Media, Inc., 2025 VT 32 (Vt. June 20, 2025)

The Supreme Court of Vermont has delivered a consequential opinion concerning the scope of damages available in negligent-supervision cases. Two sisters, Ciara and Brona Kilburn, were surreptitiously filmed changing clothes by Bill Simmon—an instructor and longtime employee of Vermont Community Access Media, Inc. (VCAM)—who later posted the videos on pornographic websites. A jury awarded each plaintiff $1.75 million in compensatory damages against both Simmon and VCAM, plus punitive damages against Simmon. VCAM challenged, among other things, the availability of emotional-distress damages absent any traditional “physical injury.” The Court affirmed, expressly holding that when negligent supervision facilitates intentional torts that themselves allow recovery for purely emotional harms (here, invasion of privacy and IIED), the employer may likewise be liable for such harms even though the plaintiffs sustained no separate bodily impact.

Summary of the Judgment

• Evidence Issue – VCAM waived its objection to evidence of child pornography previously found on Simmon’s hard drive when it stipulated to admission of the police interview containing that evidence.
• Emotional-Distress Damages – The Court clarified that the usual “physical injury” barrier (Vincent rule) does not bar recovery where negligent supervision is predicated on intentional torts that inherently support emotional-distress awards.
• Remittitur – The $1.75 million awards against each defendant were not duplicative or excessive.
• Cross-Appeal – Plaintiffs waived joint-and-several liability for Simmon’s share of damages by failing to raise or preserve the issue in the jury instructions and verdict form.
• Outcome – All portions of the verdict were affirmed.

Detailed Analysis

1. Precedents Cited & Their Influence

• Restatement (Second) of Agency § 213 – Adopted earlier in Haverly v. Kaytec, Inc., this provision anchors negligent-supervision liability on an employer’s failure to control premises or instrumentalities. The Kilburn Court relies on the text to show no “physical-injury” requirement exists.
• Vincent v. DeVries, 2013 VT 34 – Set the general Vermont rule: emotional-distress damages in negligence require a substantial bodily injury absent physical impact, subject to narrow “special circumstance” exceptions. Kilburn distinguishes rather than overturns Vincent by creating a doctrinal carve-out for negligent-supervision cases tethered to intentional wrongs.
• Zeno-Ethridge v. Comcast Corp., 2024 VT 16 – Held PTSD alone is not a “physical injury.” Kilburn accepts this premise but avoids its consequence by repositioning the analytical focus: once the underlying intentional tort allows emotional damages, the employer’s negligent supervision inherits that exposure.
• Fitzgerald v. Congleton, 155 Vt. 283 (1990) & Brueckner v. Norwich Univ., 169 Vt. 118 (1999) – Provide background on emotional-distress and NIED doctrines; the Court makes clear that its new holding does not alter those doctrines.
• Foreign Authority – The majority embraces the “majority position” nationwide (e.g., Kiesau v. Bantz, Iowa; Colleton v. Charleston Water Sys., D.S.C.) that negligent supervision does not hinge on physical injury. It also explicitly declines to follow Florida’s restrictive Golzar decision.

2. Legal Reasoning

1. Re-characterising the Cause of Action – The Court separates negligent supervision from traditional negligence. Because the claim is derivative of Simmon’s intentional invasion of privacy and IIED, the compensability of damages flows from those intentional torts, not from standard negligence metrics.
2. Causation Logic – VCAM’s supervisory failure enabled the filming; without that misconduct, the online dissemination—and thus the plaintiffs’ distress—would not exist. Therefore, VCAM’s negligence is a proximate cause of pure emotional harms.
3. Policy Considerations – Assigning liability to the negligent employer incentivises vigilant supervision over employees’ use of premises and equipment, aligning with prior Vermont precedent (Bradley v. H.A. Manosh Corp.) that risk allocation should fall on the enterprise.
4. Preservation & Procedure – The Court enforces meticulous preservation rules: VCAM waived evidentiary objections; plaintiffs waived joint-and-several claims. This underscores the procedural rigor expected in Vermont civil practice.

3. Impact and Future Ramifications

• Expanded Employer Exposure – Vermont employers now face potential liability for substantial emotional-distress awards in negligent-supervision suits where workers commit privacy invasions, sexual assaults, data breaches, or other intentional torts, even if victims suffer no bodily impact.
• Narrow but Powerful Exception – The Court repeatedly stresses it is not abrogating the Vincent rule broadly. Litigants must still prove: (a) an underlying intentional tort allowing non-physical damages; and (b) a breach of supervisory duty that proximately caused the harm. Nonetheless, plaintiffs will likely invoke Kilburn in cases involving stalking, unauthorized publication of private data (“revenge porn”), workplace harassment, etc.
• Clarification on Waiver & Jury Forms – The cross-appeal serves as a caution: requests for joint-and-several liability must be built into instructions and verdict interrogatories.
• Dialogue on PTSD – Chief Justice Reiber’s concurrence calls for further doctrinal evolution, signalling potential future reconsideration of the body/mind divide in Vermont tort law. Advocates may leverage this dicta in legislative or judicial reform efforts.

Complex Concepts Simplified

• Negligent Supervision – When an organization fails to reasonably oversee an employee or agent, enabling that person to harm others using the organization’s resources or premises.
• Emotional-Distress Damages – Monetary compensation for psychological harms such as anxiety, humiliation, or PTSD. Normally limited in negligence cases unless tied to a physical injury or special circumstance.
• Intentional Infliction of Emotional Distress (IIED) – A separate tort requiring outrageous conduct and resulting severe emotional harm; pure emotional damages are always recoverable.
• Invasion of Privacy – Intrusion Upon Seclusion – Unauthorized intentional intrusion into one’s private affairs; recovery may be for mental anguish alone.
• Joint & Several Liability – A rule that allows a successful plaintiff to collect the entire judgment from any one of multiple liable defendants. Not automatic in Vermont after 12 V.S.A. § 1036.
• Remittitur – Trial judge’s power to reduce (or require reduction of) an excessive jury award as condition of avoiding a new trial.
• Motion in Limine – Pre-trial request to exclude certain evidence. Stipulating to admit the evidence later generally waives the earlier objection.

Conclusion

Kilburn v. VCAM does not topple Vermont’s established barrier to emotional-distress recovery in ordinary negligence claims; rather, it creates a targeted doorway when negligent supervision facilitates intentional torts. Employers must now recognise that supervisory lapses exposing victims to invasions of privacy, sexual exploitation, or similar intentional wrongs can result in sizeable emotional-distress verdicts even absent physical injury. Plaintiffs, meanwhile, are reminded to preserve theories such as joint-and-several liability early and explicitly. The decision thus reshapes the litigation landscape for workplace-related misconduct while inviting continued debate—highlighted by the Chief Justice’s concurrence—over the evolving recognition of psychological injuries in Vermont tort law.