# Sabb v. South Carolina State University > Supreme Court of South Carolina · July 15, 2002 · 350 S.C. 416 URL: https://www.frixlaw.com/law-library/cases/9579521 ## Case - **Full name:** Earline C. SABB, Respondent, v. SOUTH CAROLINA STATE UNIVERSITY, Appellant - **Court:** Supreme Court of South Carolina - **Decided:** July 15, 2002 - **Citations:** 350 S.C. 416; 567 S.E.2d 231; 18 I.E.R. Cas. (BNA) 1602; 2002 S.C. LEXIS 121 - **Precedential status:** Published - **Opinion:** Dissent by Pleicones - **Judges:** Moore, Waller, Burnett, Pleicones - **Cited by:** 129 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9579521 ## How later opinions describe it (automated extraction) - holding that in reviewing the denial of a motion for a directed verdict or JNOV, the court is required to view the evidence and inferences that reasonably can be drawn therefrom in the light most favorable to the non-moving party - explaining that when ruling on JNOV motions, the trial court views the evidence in the light most favorable to the non-moving party and will deny the motion when the evidence yields more than one inference - finding that the Act provides the exclusive remedy for employee’s claims of negligent supervision and negligent retention arising out of and in the course of her employment - holding the existence or absence of an employment relationship is a jurisdictional fact that the court must determine based on its review of all the evidence in the record - explaining that the Law vests the Commission with “exclusive original jurisdiction” over covered claims ## Opinion text PLEICONES, Justice: I agree with the majority that the Workers Compensation Act (“the Act”) does not divest the circuit court of subject matter jurisdiction in this matter. I would, however, grant the University’s motion for a directed verdict on Sabb’s negligent supervision and retention claims, 7 and therefore, I respectfully dissent. I question whether an employee should ever be allowed to sue her employer on a theory of negligent retention or supervision for the acts of a supervisory employee. 8 See Patriarca v. Center For Living and Working, Inc., 1999 WL 791888 (Mass.Super.1999). Assuming such an action could be brought, I would follow the approach taken by a number of courts and require that the actions of the negligently supervised or negligently retained supervisor be significantly more egregious than White’s in order to be actionable in tort. See e.g. Hays v. Patton-Tully Transp. Co., 844 F.Supp. 1221 (W.D.Tenn.1993) (negligent supervision claim will lie only where supported by viable claim of tortious conduct by offending employee); Mulhern v. City of Scottsdale, 165 Ariz. 395 , 799 P.2d 15 (Ct.App.1990) (in order for employer to be liable for negligent hiring, retention, or supervision, the employee *432 must have committed an actionable tort); Schoff v. Combined Ins. Co. of America, 604 N.W.2d 43 (Iowa 1999) (the torts of negligent hiring, supervision, or training must include as an element an underlying tort or wrongful act committed by the employee); Hogan v. Forsyth Country Club Co., 79 N.C.App. 483 , 340 S.E.2d 116 (1986) (before employer can be held liable for negligently hiring or retaining an employee, plaintiff must prove that the offending employee committed a tortious act resulting in injury to plaintiff); Gonzales v. Willis, 995 S.W.2d 729 (Tex.Ct.App.1999) (plaintiff-employee’s negligent hiring, retention, and supervision claims against employer failed where plaintiff-employee failed to show actions of offending employee amounted to an actionable tort); Haverly v. Kaytec, Inc., 169 Vt. 350 , 738 A.2d 86 (1999) (the tort of negligent supervision must include as an element an underlying tort or wrongful act committed by the employee). The evidence presented by Sabb at trial established the following: (1) White reassigned Sabb’s job duties, that is, he relieved Sabb of her training and supervisory duties, and scheduled her to work the night shift; (2) when Sabb reported that she was physically unable to perform her normal job assignments, White “threatened” to make Sabb submit leave (after Sabb complained to the University, White did not carry through with the “threat,” but instead reassigned Sabb to light duty); (3) White singled-out Sabb at a staff meeting and verbally reiterated his authority as head of the police department; and (4) White refused to approve Sabb’s request to discipline an employee supervised by Sabb. None of this conduct rises to the level of a tort. 9 To allow recovery based on the theory advanced in this case has grave consequences for the employer-employee relationship. The workplace is often stress-laden. Employees fre *433 quently disagree with the personnel decisions of their supervisors. Often employees complain to management about job assignments and the treatment they receive from supervisors. Allowing an employee to recover from the employer based on the facts of this case leaves employers with two options in the future: (1) fire the supervisor when a subordinate employee complains, or (2) retain the supervisor, and become liable for money damages if the complaining employee prevails on a negligent retention and supervision claim. 10 While White’s conduct bespeaks an undesirable management style, the University should not be liable to this unhappy plaintiff as a result. In my opinion, the University was entitled to a directed verdict on Sabb’s claims of negligent supervision and negligent retention. Sabb has wholly failed to show that White’s actions towards her constituted a tort. . Although Sabb’s complaint also asserted causes of action for intentional infliction of emotional distress, violation of Whistle Blower Act, assault, civil conspiracy, and negligent hiring, the only theories submitted to the jury were her claims of negligent retention and negligent supervision. . Of course, but for the University’s failure to interpose the exclusivity provisions of the Act, this case would not have been before the Circuit Court in the first instance. In my view, this failure to assert the exclusivity provisions of the Act may have been strategic, owing to an assessment that the case would probably be dismissed. . The only possible theory I can perceive from Sabb's complaints is a claim for outrage or intentional infliction of emotional distress. There is insufficient evidence as a matter of law to support recovery for outrage. See Shipman v. Glenn, 314 S.C. 327 , 443 S.E.2d 921 (Ct.App.1994) ("callous and offensive conduct" of supervisor insufficient to support employee’s recovery for intentional infliction of emotional distress; conduct must be so extreme and outrageous as to exceed bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community; plaintiff not proceeding on theory of negligent retention or supervision). . There exists, of course, a third option: take action against the complained-of employee short of job termination. The University pursued that option here, but that course of action did not relieve it of liability to Sabb. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9579521. Public record. Not legal advice.