Misty Elrod v. Busch Entertainment

Affirmed by unpublished PER CURIAM opinion. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Appellants Misty Petrosky Elrod, Jane Doe # 1, and Jane Doe # 2 appeal the district court’s order sustaining objections *551 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, — U.S. —, 132 S.Ct. 115, 181 L.Ed.2d 39 (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, — U.S. —, 132 S.Ct. 757, 181 L.Ed.2d 482 (2011). Virginia law case law generally recognizes that a plaintiff may not recover for emotional injury resulting from the defendant’s negligence without proof of contemporaneous physical injury. See Myseros v. Sissler, 239 Va. 8, 387 S.E.2d 463, 466 (Va.1990); Hughes v. Moore, 214 Va. 27, 197 S.E.2d 214, 219 (Va.1973); Bowles v. May, 159 Va. 419, 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, 2005 WL 3579105, 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 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED.