[132]. Let us hope Virginia revisits the question again soon. [19]. [50], There are two key hurdles a plaintiff must clear in order to successfully claim intentional infliction of emotional distress: the second and fourth elements of the tort. 1999) (employees who were harassed by supervisor experienced anxiety and fear, sought medical treatment, and were prescribed medication to alleviate their problems suffered severe emotional distress). Finally, Calloway clearly alleges a causal connection between the VDOC employees’ conduct and the stress she claims. As in the Hygh case heard in Fairfax County, the Virginia Beach City Circuit Court held that although Russo v. White stands for the proposition that “allegations of stress, humiliation, embarrassment, injury to reputation, and mental anguish unaccompanied by objective physical injury, medical attention, or lost income are not sufficient to support a claim for intentional infliction of emotional distress,”[129] there was an exception to this rule. But the question of what constitutes “severe emotional distress,” caused by the defendant, is one that the Virginia courts should show a willingness to reconsider. [51] In both the employment and nonemployment contexts, the courts generally rely on Section 46 of the Restatement (Second) of Torts, which requires that the plaintiff prove that the defendant’s conduct was, so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. 460 (2012) (Fairfax County). [125] Other wait staff also complained about Williams and other employees, and even brought their complaints to the president and vice president of the company, but no action was ever taken. [139]. [20] This became known as the “physical impact rule,” which limited the ability of plaintiffs to recover damages for emotional distress in negligence cases. 569, 575 (1997) (Fairfax County)). Supp. That evolution might have boded well for plaintiffs when the Supreme Court of Virginia recognized the new tort of intentional infliction of emotional distress just one year later; after all, if the court was willing to broaden the chances for plaintiffs to win damages for mental distress in the context of negligence claims, they might be willing to do so in other contexts as well. Even if a defendant “has intended to inflict emotional distress,” or his conduct can be “characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort,” the requirement of [outrageousness] has not been satisfied. Penney. [124] She complained to her supervisor and the operating manager at the restaurant several times. Against this background, we now turn to application of the intentional infliction of emotional distress tort in the Virginia workplace. [77]. Douglas Bryan Marlowe, Comment, Negligent Infliction of Mental Distress: A Jurisdictional Survey of Existing Limitation Devices and Proposal Based on an Analysis of Objective Versus Subjective Indices of Distress, 33 Vill. [183] There, the court said: It cannot be seriously contested that Calloway has pled the first three elements of IIED. [15]    See, e.g., McGallon v. Verizon Wireless Unlimited, Inc., 85 Va. Cir. [28]. However, it seems settled in Virginia that there can be no recovery for mental anguish and suffering resulting from negligence unaccompanied by contemporaneous physical injuries to the person. without more specific detail of numerous complaints that had surfaced in recent weeks regarding the way and manner [in which] he conducted himself with vendors.”[77], His supervisor told him that if he resigned, “he would get severance and vacation pay, and the [company] would tell potential employers he resigned.”[78] If he was terminated, however, then he would not get any benefits and prospective employers would be told of the alleged problems Sietz experienced with vendors. . This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Infliction of Emotional Distress and the related topic of intentional torts. [120], A case that arose three years later, Padilla v. Silver Diner, involved a server named Annamarie Padilla who worked at the Silver Diner restaurant. Assuming the third element—causal connection—is met, some courts (including those in Virginia) have also set a very high standard in order to meet the fourth element, proof of severe emotional distress. 618, 619 (1902). [17]. 1981). Life Ins. [33]. [13]  Fentress Families Trust v. Va. Elec. Blakeman v. Emergency USA, 83 Va. Cir. [161], By contrast, in Middlekauff v. Allstate Insurance Co., an employee named Texanna Middlekauff brought an action against her employer for intentional infliction of emotional distress stemming from harassment and verbal abuse from her supervisor. at 795. . [103] But what if an employee brings a sexual harassment case framed as a tort claim for intentional infliction of emotional distress? [153] Abney was summoned to her supervisor’s office, where she was informed that she was fired. . Ct. App. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. By: Sharen Sellgren Virginia will only allow a plaintiff to recover for an emotional injury if it is (1) accompanied by a physical injury; or (2) the result of intentional or reckless conduct. Id. Id. Id. Id. 170 Va. 329, 196 S.E. K-Mart contends there is no objective evidence of the distress, such as medical, economic or social problems. The Supreme Court of Virginia’s 1991 ruling in. [162]Specifically, she alleged in her complaint that her supervisor, Tony Richards, “intentionally sought to humiliate her in front of other employees by making derisive comments concerning the fact that she was overweight, as well as sexist and other belittling remarks.”[163] The trial court held that the action was barred by the exclusivity provision of the Virginia Workers’ Compensation Act,[164] but the Supreme Court of Virginia held that her claim was not barred by the exclusivity provision because she did “not allege an ‘injury by accident’ ‘arising out’ of her employment.”[165] Thus, the exclusivity provision did not bar Middlekauff’s action and she could proceed with her intentional infliction of emotional distress claim against the defendant employer.[166]. . As will be explored in the next section, the tort of intentional infliction of emotional distress is a relatively recent phenomenon, one that presents difficult issues, including what counts as “severe emotional distress” and how to calculate damages. Disclaimer & Privacy Statement, Personal Injury & Professional Malpractice, Tremblay & Smith files Defamation Suit on behalf of Judge Bradley Cavedo against Daniel Gade, Sanctions for Loss or Destruction of Evidence – SB1619, Prohibition against Excessive Fines by U.S. States, Negligent Infliction of Emotional Distress, Qualified Immunity for Police Officer Who Shot Woman in Own Front Yard. Summary: Guidelines for Intentional Infliction of Emotional Distress Claims In conclusion, the law may afford a remedy to an individual who has been subjected to revolting and abhorrent behavior. In Magallon v. Verizon Wireless Unlimited, Inc., the Fairfax County Circuit Court found that the plaintiff alleged outrageous and intolerable behavior when she alleged that the defendant, her former manager, called her sexually demeaning names, threatened her with violence, profanely disparaged her character by accusing her of having sexual relations with the business owner, and took her car and house keys when she rebuffed his sexual advances. held that Rosalie Eldridge’s conduct on behalf of her employer in subjecting Danny Lee Womack to potential incrimination as a child molester was outrageous. [98]. Additionally, the Plaintiffs told Williams and Miller on multiple occasions that their conduct was unwelcome, and it may be inferred that Williams and Miller intended to cause the Plaintiffs distress by continuing to sexually assault and harass them. Id. Specifically, the abandonment of the “physical impact rule” in favor of a rule that looked at the natural consequences of witnessing something distressing meant that more plaintiffs could recover damages. [35]. 330, 330–31 (1987) (Henrico County). In addition, Suzy Anne is suing the owner and producer of WSLZ for … [10] Angry and embarrassed, Bodewig quit her job at the K-Mart when her shift ended that day. at 28. 67, 86 (Va. Cir. and clearly differ from cases involving physical or sexual assaults . Category: Intentional Infliction of Emotional Distress. [132] Specifically, she alleged that Dr. Osama Modjadidi, a dentist and employee of Konikoff Family Dentistry, used his position of authority to “forcibly rub[] his body against hers, unsnap[] her bra when her hands were engaged with the film processor,” touch her buttocks and breasts, and make “several offensive sexual remarks.”[133] She claimed that this sexual harassment caused her “extreme mental and emotional anguish, physical injuries, and medical expenses.”[134], The court compared the sexual harassment claim in Padilla to the claim brought by Ms. Hazzis, and determined that the physical injuries in Padilla were more pronounced than those complained of by Ms. 1965). Virginia courts, however, do not favor claims for intentional infliction of emotional distress, particularly because it is easy for a plaintiff to fake emotional injury. [28], Returning to negligence claims, the “physical impact rule” announced in Connelly v. Western Union Telegraph Co.[29]continued until 1973, when the Supreme Court of Virginia decided the case of Hughes v Moore. Restatement (Second) of Torts § 46 cmt. Id. I say “ostensibly” because it is almost impossible to find an action that meets the definition. [and] was prescribed Zoloft and another medication  to  control  her  vomiting”  and  post-traumatic  stress disorder. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Unfortunately for the plaintiffs in each of these cases, the Virginia courts refused to recognize the workplace actions they complained about as rising to the level of “outrageous conduct.” As the cases demonstrate, sometimes employees are subject to rude, unfair, or demeaning treatment by their supervisors, but that does not mean they can meet the  standard  for  intentional infliction  of  emotional  distress  in  Virginia. See Marlowe, supra at 796–98, 796 n.91; see also Restatement (Second) of Torts §§ 313, 436, 436A. [42]. Connelly v. W. Union Tel. 2017 & Cum. The outrageousness requirement “is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved.”[6] “It is insufficient for a defendant to have acted with an intent which is tortious or even criminal.”[7]  Rather, “liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”[8] “It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery ….”[9] Merely insensitive or demeaning conduct does not amount to outrageous behavior. Law Inst. E.S.I.S., Inc., 18 Va. Cir. In reversing the trial court in overruling the defendant attorney’s demurrer, the court observed that the plaintiffs’ complaint failed to state that the defendant instituted the ethics complaint for the purpose of inflicting emotional distress,[3] although the defendant did act intentionally. See id. Lichtman v. Knouf, 248 Va. 138, 139–40, 445 S.E.2d 114, 114–15 (1994); see also Reamer v. Nat’l Serv. [144]. In one of the first major cases, the 1970 decision of Alcorn v. Anbro Engineering, Inc., the California Supreme Court held that the tort claim could succeed where an employer simply condoned the use of profane and abusive epithets made by a supervisor to his employees. Returning to negligence claims, the “physical impact rule” announced in, continued until 1973, when the Supreme Court of Virginia decided the case of, In that case, Toy Hughes crashed his car into the front porch of one Sue Etta, Moore’s physician testified at her trial that she was “, for the proposition that mental distress and physical injuries unaccompanied by actual physical contact could be grounds for recovery the earlier case of. LEXIS 296 (Va. Cir. 351, 354 (Pa. Super. at 34, 197 S.E.2d at 219. Second, an unjustified strip search strikes the Court as so invasive a procedure that any reasonable person could (perhaps would) describe it as “outrageous,” if not justified. at 29, 400 S.E.2d at 164 (Hassell, J., dissenting). First, she alleges that the VDOC employees acted intentionally, i.e., that they knew they had no legal reason to detain her or subject her to a strip search; a jury could reasonably conclude that an officer should have known that an unwarranted strip search could likely cause emotional distress. The court added, however, that where there is a personal injury, emotional distress is a proper element of damages. [86]  The court  stated  that  Ellison’s allegations, do no more than detail a scenario carried out daily in the workplace. Id. [61]. 20011 Emotional Distress Recovery in Alabama 1005 A. In the view of the Supreme Court of Virginia “there are inherent problems in proving a claim alleging injury to the mind or emotions in the absence of accompanying physical injury,” and the tort of intentional infliction of emotional distress is not favored.[1]. 781, 792 (1988). [2]    Womack v. Eldridge, 215 Va. 338, 342 (1974). . [38] The court held: [W]here conduct is merely negligent, not willful, wanton, or vindictive, and physical impact is lacking, there can be no recovery for emotional disturbance alone. . at 686. Assuming the third element—causal connection—is met, some courts (including those in Virginia) have also set a very high standard in order to meet the fourth element, proof of severe emotional distress. [1] That evening, she was ringing up the sale of some curtains for a customer named Alice Golden, but when she called out the price, Golden told her that the curtains were on sale and that Bodewig was overcharging her. Id. For example, in Delk v. Columbia/HCA Healthcare Corp., the plaintiff pleaded a cause of action for IIED when she alleged the defendant psychiatric hospital recklessly failed to inform her that a fellow patient who had sexually assaulted her had HIV, which prevented her from taking preventive measures to avoid transmitting HIV to her husband.[5]. If the complained-of conduct by a supervisor or other employer representative does not rise to the requisite level, it is dismissed as being among those “mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities” to which the employee “must necessarily be expected and required to be hardened.”. 50, 55 (Virginia Beach 2003) (citing Hygh v. Geneva Enters., Inc., 47 Va. Cir. [13] “[N]ightmares, depression, low self-esteem, shame, and other similar afflictions have likewise been held insufficient . at 335, 196 S.E. While some state courts seem to have readily embraced the tort, Virginia courts have largely looked with disfavor on intentional infliction of emotional distress claims. at 424–28, 166 S.E. As is seen from these decisions, Virginia employees typically do not prevail in their intentional infliction of emotional distress claims. [147], Elaborating on these terms, the Bradshaw Court explained that “[a]n accident occurs ‘in the course of the employment’ when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto.”[148] Further, the court found, the Act requires “a causal connection between the conditions under which the work is required to be performed and the resulting injury.”[149] The court explained that “if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation . Ct. App. Supp. [and] lack of concentration at work.”[59] She argued that White’s conduct offended any sense of decency or morality, and that although White did not speak during the calls, both she and her daughter were threatened because of the frequency of the calls.[60]. Employees seeking to bring claims against employers for intentional infliction of emotional distress may be barred by the workers compensation act. [191]. The plaintiff also claimed that Bowles had spread rumors among their neighbors about his wife’s alleged infidelity. Hughes, at 28–29, 35, 197 S.E.2d at 215, 220. Id. However, it is important to note that damages for emotional distress had been sought by plaintiffs seeking recovery using traditional tort claims in Virginia for many years before the emergence of the intentional infliction of emotional distress tort. [144] The Act provides the exclusive remedy for employees seeking relief from such injuries, but both conditions must be met; that is, the injury must both arise out of the employment and in the course of employment. [15] Other courts soon followed California’s lead in taking a broad view of intentional infliction of emotional distress claims. [11]  85 Va. Cir. [146]. 1981)              . Intentional infliction of emotional distress is when someone does something truly outrageous, trying to get you upset. [39]. Id. Requiring a plaintiff to show that a defendant intentionally engaged in outrageous conduct, that which “shocks the conscience,” is a fair burden; it is a standard that is appropriately difficult to meet (although as societal standards change, outrageousness may be even harder to demonstrate). 241 Va. 23, 400 S.E.2d 160 (1991). at 342, 210 S.E.2d at 148. at 551–53. 400, 417–18 (2018) (Augusta County) (plaintiff, a visitor to a prison, “was upset, and crying” and “shocked, frightened, and felt degraded and humiliated” when she was subjected to a strip search, but the court rejected her claim that she suffered severe emotional distress). Although the court focused primarily on the question of whether a qualified privilege to defamation on the part of the defendant Bowles existed, the court went on to address the issue of independent recovery for willfully inflicted emotional distress, stating: There is a sharp conflict in the authorities as to whether there can be a recovery for fright or mental shock unaccompanied by contemporaneous injury when the action is based upon mere negligence. My wife has been suffering a pattern of emotional distress by her daughter's father for over 12 years. [148]. [100] Further, the court held, Blakeman did “not allege any objective physical injury caused by the stress” of having to take a drug test, nor did he require medical attention, and thus he did not meet the fourth prong of the test either.[101]. [177]. Id. at 28, 400 S.E.2d at 163. at 372–73 (citing Johnson v. McKee Baking Co., 398 F. Supp. For more information on emotional distress see the pages on Wikipedia. [127] She filed her claim in Virginia Beach City Circuit Court.[128]. [49], Applying the four elements of the tort, the court found that there was evidence that Eldridge’s conduct was extreme and outrageous, that a reasonable person would have “recognized the likelihood of the serious mental distress that would be caused in involving an innocent person [like Womack] in [a] child molest[ation] case[],” and that Womack’s emotional distress was severe. 47 Va. Cir. d (Am. Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. [32]. “The purpose of the rule requiring physical impact is to prevent ‘illusory or imaginative or faked’ claim.” Id. [14] Indeed, the notion that an employee could seek damages for the tort of outrageous conduct on the part of his or her employer was being increasingly accepted in many state courts in the 1970s. Emotional Distress as an Independent Tort Historically in Alabama, damages for infliction of emotional distress have been described as "parasitic" in that the right to recover such dam- [109] Her supervisor, a general sales manager named Beltran, continually subjected Hygh to “sexually suggestive, harassing comments and acts.” Beltran’s harassment culminated on August 23, 1996, when, during work hours and upon Beltran’s suggestion, Hygh and Beltran first drove to a store and purchased a CD for Hygh to play in her car. 569, 574 (Fairfax Co. 1997)). So what does this mean for an employee working in the Commonwealth of Virginia who suffers what he or she believes to be severe emotional distress stemming from the outrageous conduct of an employer? [171] Therefore, the court concluded, the Virginia Workers’ Compensation Act did not bar Padilla’s claim as her injuries did not arise out of employment as required by the Act. But new possibilities opened up in 1974 when the Supreme Court of Virginia recognized the tort of intentional infliction of emotional distress for the first time in Womack v. Spence v. 215 Va. at 342, 210 S.E.2d at 148. [52]. [40]. Concededly, this element of the tort has been, and still is, troublesome to courts. [64]. A brief review of a century of Virginia court decisions concerning the issue of damages for emotional distress, arising in various tort contexts, shows that the Virginia courts have not been rigid in their approach, but rather have shifted their analysis over time as we gain a better appreciation for the nuances of mental suffering—what causes it, how it manifests itself, and what constitutes severity. In order to obtain a photograph of Womack, Rosalie Eldridge went to his home, telling him she was “a Mrs. Jackson from the newspaper and that she was writing an article on Skateland,” where Womack worked as a coach. . . at 67, 40 S.E. Intentional infliction of emotional distress (IIED; sometimes called the tort of outrage) is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. [68] “[N]o reasonable person could or should be expected to endure the injuries endured by Russo,” he stated. at 28, 400 S.E.2d at 162. In rejecting Russo’s argument that her condition constituted severe emotional distress, the court stated: “There is no claim, for example, that she had any objective physical injury caused by the stress, that she sought medical attention, that she was confined at home or in a hospital, or that she lost income.”[67] These requirements, grafted onto the Restatement’s standard, meant that it was quite unlikely that a plaintiff would prevail, absent physical injury resulting from the outrageous conduct. Seitz’s supervisor would only say that he “used coercive and unethical tactics” in dealing with the vendors. Id. Id. at 26, 400 S.E.2d at 162. 50, 53 (2000) (Virginia Beach City). [67]. 2003] Intentional Infliction of Emotional Distress 113 one court emphasized, “[t]he standard for successfully pursuing a claim of intentional infliction of emotional distress is high.”15 Prosser and Keeton concurs that “[t]he requirements of the rule are rigorous, and dif- ficult to satisfy.”16 Many states use the Restatement (Second) of Torts 1991)). Id. [31]. 2005) (failing to change door locks on rental property which allowed home invasion to take place caused shock to plaintiff who witnessed harm to a loved one; shock was sufficient to constitute severe emotional distress); Robel v. Roundup Corp., 59 P.3d 611, 620 (Wash. 2002) (employee who was mocked for her back injury and was called vulgar names suffered severe emotional distress); GTE Southwest Inc. v. Bruce, 998 S.W.2d 605–19 (Tex. “Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.”[62]. at  29–30,  197  S.E.2d at 216–17 (citing Moore v. Jefferson Hosp., Inc.,         208 Va. 438, 158 S.E.2d 124 (1967)). L. Rev. Even the alleged assault arose out of Plaintiff’s employment, for it involved a work-related matter. . Id. B. . [176], III. [188]. [50]. [35] The Hughes court cited as authority for the proposition that mental distress and physical injuries unaccompanied by actual physical contact could be grounds for recovery the earlier case of Moore v. Jefferson Hospital, Inc.[36] There, the actions of a hospital employee named Phyllis Hatter who entered an operating room and prevented a physician from performing surgery on the plaintiff were held to constitute an intentional tort on her part, which, even without actual physical contact with the plaintiff, caused him physical and mental injury.[37]. It is apparent that Miller’s and Williams’ alleged conduct was so outrageous and offensive as to cause the Plaintiffs severe emotional distress as well as physical injuries . Auth., 823 N.E.2d 1249, 1254–55 (Mass. [40] Thus, Hughes clarified that a plaintiff need not suffer contemporaneous physical injury (i.e., physical impact) to recover for emotional distress so long as the emotional distress physically manifested itself and there was an “unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury.”[41]. 63 Va. Cir. [7]    Russo v. White, 241 Va. at 27, 400 S.E.2d at 162 (internal quotation marks and citation omitted). ©Copyright 2020 Tremblay & Smith, PLLC Without a physical injury, a plaintiff can only rarely recover for IIED. L. Rev. [16]. Some courts and commentators have substituted mental for emotional, but the tort is the same. [189] However, under the standard set forth in Russo v. White, Bodewig would fail to meet the fourth prong of the tort. Recall, “[a] claim for intentional infliction of emotional distress is not favored by the law,”[12] and sleeplessness, nausea, headaches, fright, nervousness, and dread of the future are insufficient to state a claim for IIED absent an accompanying claim that the plaintiff suffered an injury resulting from the stress, or that he required medical treatment or underwent hospitalization. [123], Padilla repeatedly told Williams that she was not interested in him and was offended by his behavior. 85 Va. Cir. [150]. Id. Intentional Infliction of Emotional Distress: This claim for emotional distress occurs when a defendant’s actions are intentional or reckless. [3], Golden returned about ten minutes later, and then asked Bodewig what she had done with her money. There have been occurrences as recently as May of this year. 550 (1932). L. Rev. Id. [117] Rather, held the court, the plaintiff, “an alleged victim of sexual assault, need not plead with graphic specificity any additional objective physical injury.”[118] The court said: “The victim of a sexual assault clearly experiences severe emotional distress that no reasonable person could be expected to endure.”[119] Therefore, the employer’s demurrer was overruled and Hygh could pursue her claim, even without a showing of physical injury. In situations where only bad manners and mere hurt feelings are involved that the! Spread rumors among their neighbors about his wife ’ s alleged infidelity 13 ] Fentress Families v.. V. 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Had “ sought medical attention for her mental suffering so thin-skinned as to allow themselves to be the case s. 51 ( 2000 ) ( Norfolk City ) 428 ( 1986 ) ( Norfolk City ), 713 1047... Linda Bodewig was not interested in him and was offended by his employer, Phillip Morris that causes! In-House collection procedure and then resigned from her job at the K-Mart manager 1997 ). Va. 366 ( 1989 ) harassment intentional infliction of emotional distress virginia 9 ] Womack v. Eldridge, 215 Va.,. Returned about ten minutes later, and still is, troublesome to courts may be able to a... Circuit courts, the conduct was outrageous intentional infliction of emotional distress virginia intolerable enough to state a of. Danger ” or “ physical impact is to blame Roanoke City ) the checkout counter completed. V. moore, 208 Va. at 342, 210 S.E.2d at 164 (,! 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