Misty Petrosky Elrod v. Busch Entertainment Corporation, d/b/a Water County USA; SANDEEP DEEPAK AGARWAL

UNPUBLISHED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, d/b/a Water County USA;
SANDEEP DEEPAK AGARWAL,
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 Decided: June 27, 2012
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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 absent a showing of contemporaneous physical
injury. On appeal, Appellants argue that their 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. Laber v.
Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en 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. Laber, 438 F.3d at
428; see L.J. v. Wilbon, 633 F.3d 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

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the defendant’s negligence without proof of contemporaneous
physical injury. 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. See
Hughes, 197 S.E.2d at 219; Bowles, 166 S.E. at 555. 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 because the facts and legal

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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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