UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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