Blakeman v. Emergency USA, 83 Va. Cir. [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. [54] It is worth noting, however, that while the facts in Womack presented an extreme scenario, clearly meeting the second element of the tort, the decision may have set such a high bar for what constitutes “outrageous conduct” that the Virginia courts, returning to Womack as a touchstone, might have viewed the cases that were to follow as falling short of the mark. [159] Further, Abney’s injuries occurred at her place of employment, during working hours, and in circumstances directly related to her employment—or at least directly related to her discharge from employment. 60 Va. Cir. [179] Having satisfied the tort elements of intentionally engaging in outrageous conduct, the court then turned to the elements of causation and severe emotional distress, and held as follows: If the facts presented are believed, plaintiff suffered shock, humiliation and embarrassment, suffering that was not merely transient. Ct. 2008). For example, in Ely v. Whitlock, the plaintiffs, two attorneys, alleged that the defendant, who was opposing counsel in an underlying divorce suit, intentionally inflicted emotional distress on them by instituting an ethics complaint against them. The court said: “Defendant belittles these symptoms, but it is the distress which must be severe, not the physical manifestations.”[180], The court concluded that Bodewig’s distress “was more than that which a person might be reasonably expected to pay as the price of living among people.”[181] The court concluded that Bodewig’s evidence of severe emotional distress was sufficient to go to a jury.[182]. at 342, 210 S.E.2d at 148. [177] Like other courts, the Oregon courts applied the same four elements of the tort of intentional infliction of emotional distress: (1) intent; (2) outrageous conduct; (3) a causal connection between the conduct and the emotional distress; and (4) the emotional distress was severe. [20] This became known as the “physical impact rule,” which limited the ability of plaintiffs to recover damages for emotional distress in negligence cases. But why should this be the case, given the numerous Virginia circuit court holdings that employees who suffer from sexual harassment can prevail without meeting Russo’s additional requirement of the tort’s fourth prong? Law Inst. and was unable to concentrate at work.”[64] Thus, the court found that the alleged effect was “not the type of extreme emotional distress that [was] so severe that no reasonable person could [have been] expected to endure it.”[65] The court noted that: The term “emotional distress” travels under many labels, such as, “mental suffering, mental anguish, mental or nervous shock . Before we return to the plight of Linda Bodewig set forth at the beginning of this article, a brief detour is in order: what role does Workers’ Compensation play in these cases? Vol. Not that Virginia courts were alone in tightening the standard. Co., 239 Va. 397, 398–99, 389 S.E.2d 712, 713–14 (1990). Id. 50, 53 (2000) (Virginia Beach City). The Virginia courts have considered a number of cases in which employees or former employees have brought claims of intentional infliction of emotional distress against their employers. [71]. Such conduct can hardly be given the dignity of being elevated to the level of “outrageous and intolerable in that it offends against the generally accepted standards of decency and morality.” To make such actions as plaintiff alleges actionable would be to create chaos in the work place. Id. The physical manifestation rule requires that a plaintiff exhibit a physical injury or symptom as the “direct and natural result of the initial emotional distress” suffered. Although not all offensive conduct qualifies as IIED, when found, a victim can recover damages from the party that caused the trauma. Abandoning the extra burden Russo places on plaintiffs would lead to a better, fairer result in all circumstances involving employer and employee, not just in sexual harassment claims. [148]. In later decades, however, many state courts dropped this requirement and instead simply required objective evidence of mental distress. [168], Thus, held the court, while as a general rule an intentional tort of an employer or a fellow employee would be found to be within the scope of the Virginia’s Workers’ Compensation Act and thus the employee’s exclusive remedy,[169] the assault must be “personal to the employee and not directed against him as an employee or because of his employment.”[170], In Padilla’s case, her fellow employees both admitted that they were trying to get her to succumb to their sexual advances; thus, their assaults were of a personal nature, directed against Padilla as a woman, not as an employee. But as will be explained below, such was not to be the case. 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. . [13]  Fentress Families Trust v. Va. Elec. . at 28. [and] was prescribed Zoloft and another medication  to  control  her  vomiting”  and  post-traumatic  stress disorder. [18]. My wife has been suffering a pattern of emotional distress by her daughter's father for over 12 years. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.” . Id. Like numerous other courts around the country, the Oregon courts had recognized the tort of intentional infliction of emotional distress by the time Linda Bodewig brought her claim. 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. Some courts and commentators have substituted mental for emotional, but the tort is the same. Law Inst. Because the elements of pleading and proof are so elevated, a victim of intentional infliction of emotional distress who has not suffered a physical contact may find it difficult to get past even the initial stages of his or her case without legal representation. While some states allow for recovery for negligent infliction of emotional distress, Virginia does not permit this type of recovery. at 335, 196 S.E. 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. at 342, 210 S.E.2d at 148. [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]. Virginia recognizes a cause of action for “intentional infliction of emotional distress,” but the claim is not favored and is difficult to maintain.A plaintiff alleging a claim for intentional infliction of emotional distress in Virginia must allege in his complaint all facts necessary to establish the cause of action in order to withstand challenge on a motion to dismiss or demurrer. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. But not all emotional injuries are caused by intentional or reckless action—sometimes ordinary negligence is to blame. [11]  85 Va. Cir. There, the court held: The Act applies to injuries by accident arising out of and in the course of employment and occupational diseases. [130]. [54]. Id. .”[14] Without some physical manifestation of injury, or at least treatment for conditions arising from the stress, the plaintiff cannot recover. 2017 & Cum. This post addresses the status of Virginia law regarding negligent infliction of emotional distress (NIED) and a recent proposal to extend recovery to more potential plaintiffs. at 151, 439 S.E.2d at 394, 395. at 27, 400 S.E.2d at 163 (quoting Restatement (Second) of Torts § 46 cmt. [136] “Cases dealing with elements of physical sexual harassment are distinguishable from cases like Russo where the allegations dealt only with non-tactile torts.”[137] The court concluded that the “egregiousness and physical nature of the alleged conduct, along with the plaintiff’s claims of emotional distress to the point of vomiting blood [were] sufficient to overrule the Defendant[] [employer’s] demurrers.”[138], The most recent case of this type was decided in 2012. is illustrative. 301, 301–03 (2016) (Chesapeake City) (employee claim for intentional infliction of emotional distress against employer where her supervisor cursed her and shoved boxes at her was victim of an assault, and her injury did not arise out of the employment as it was personal, so the Workers’ Compensation Act did not bar her claim); Morgan v. MDC Holdings, Inc., 54 Va. Cir. A cause of action for IIED, unaccompanied by physical injury, will lie when: One, the wrongdoer’s conduct was intentional or reckless. 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. The Hughes court then set out the new standard for negligence liability, rejecting the earlier “physical impact rule” (i.e., that a plaintiff could recover for emotional distress manifesting itself physically, but only if the negligence that caused the emotional distress also caused contemporaneous physical injury). 247 Va. 150, 439 S.E.2d 394, 395 (1994). [48]. The Emergence of Intentional Infliction of Emotional Distress Claims in Virginia, Up until the mid-1970s, plaintiffs in Virginia could only recover damages for emotional distress arising from negligence cases, or the occasional defamation cases. 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. at 620, 624. 1971). [157] Stated the court: Every event in this scenario, the Plaintiff’s going into her supervisor’s office to discuss a work-related matter, the termination, and the requests that Plaintiff depart from the premises, was work-related and, therefore, arose out of her employment. neurosis, psychosis, chronic depression, phobia, or any other type of severe and disabling emotional or mental condition which may be generally recognized and diagnosed by professionals trained to do so.” Id. [57] He began stalking her, calling her house and hanging up on her 340 times in two months. at 29, 197 S.E.2d at 216. See Marlowe, supra at 796–98, 796 n.91; see also Restatement (Second) of Torts §§ 313, 436, 436A. § 65.2-307 (Repl. I say “ostensibly” because it is almost impossible to find an action that meets the definition. at 27, 400 S.E.2d at 163. For example, in Abney v. Wimer, the court considered the intentional infliction of emotional distress claim brought by Kimberly Abney against her employer, the J.C. Penney Company. May. Specifically, stated the court, Russo and its progeny addressed emotional distress claims that were “independent of any physical injury and unaccompanied by any physical impact,” . Life Ins. Hazzis. d (Am. [184], However, turning to the fourth element of the tort, severity, which the court characterized as “perhaps the most difficult to apply to the facts of a case,” the court held that the plaintiff failed to carry her burden. There is, ostensibly, a claim of action available in Texas that is called “Intentional Infliction of Emotional Distress.” It is a tort, meaning that it isn’t defined by a statute and isn’t a subject of contract. 569, 575 (1997) (Fairfax County)). The Virginia courts have considered a number of cases in which employees or former employees have brought claims of intentional infliction of emotional distress against their employers. [192]. [108]. More critically, why should this additional requirement be the law at all, since, as Justice Hassell made clear in his Russo dissent, physical injury is not a necessary element under traditional intentional infliction of emotional distress analysis? . . [76]Although Seitz had worked for Phillip Morris for more than eight years, had received several promotions, and was the recipient of excellent performance evaluations, he was called into his immediate supervisor’s office one day and was “informed . 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.”. [39]. [38]. When we left our protagonist, Linda Bodewig, she had filed a claim for intentional infliction of emotional distress against her employer after Bodewig was strip-searched in an effort to assuage a customer’s concerns that she had stolen the customer’s money. at 25, 400 S.E.2d at 161. Id. The Russo court had no trouble finding that White had acted intentionally, thus satisfying the first element of the tort. 460 (2012) (Fairfax County). 1981). [121]. 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). 618, 619 (1902). 105-109 East High Street | Charlottesville, Virginia 22902 | 434-977-4455 Seitz’s supervisor would only say that he “used coercive and unethical tactics” in dealing with the vendors. Id. . Justice Hassell’s dissent in Russo focused on the majority’s finding that the plaintiff failed to satisfy the Womack requirement of severe emotional distress. This act provides that employees effectively waive their rights to bring claims based upon common law such as intentional infliction of emotional distress or other personal injury actions for injuries that are covered by the Workers Compensation Act. Spence v. . 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. [178] The Court of Appeals of Oregon reversed the trial court’s grant of summary judgment, finding that a jury could find the employer acted intentionally, and that the manager’s conduct went “beyond the limits of social toleration and reckless of the conduct’s predictable effects” on Linda Bodewig. Let us hope Virginia revisits the question again soon. [104]. As is seen from these decisions, Virginia employees typically do not prevail in their intentional infliction of emotional distress claims. . 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. [55]. [98] Blakeman complained that his employer failed to adhere to the in-house collection procedure and then refused to invalidate the drug test. [21], In addition to negligence claims, the Virginia courts considered the question of damages for emotional distress in defamation cases. Penney. Id. [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. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. . The plaintiff also claimed that Bowles had spread rumors among their neighbors about his wife’s alleged infidelity. As noted above, Bodewig would not prevail in Virginia as she did in Oregon because of the exacting requirements of Russo. These kinds of claims are based on the theory of intentional tort.Injuries resulting from physical acts like assault and battery can form the basis of an intentional tort claim, but emotionally-harmful actions can too. [130], Then, in a case decided the same year, Oelgoetz v. Appalachian Appraisal Services, Roanoke City Circuit Court held that where a female supervisor had engaged in unwanted propositioning of a male subordinate, his claim for intentional infliction of emotional distress properly survived the defendant’s demurrer, even though the court expressed skepticism about whether her conduct was “sufficiently ‘extreme and outrageous’ to overcome a Motion for Directed Verdict at the conclusion of the Plaintiff’s evidence.”[131], In 2005, in Hazzis v. Modjadidi the Norfolk City Circuit Court heard extensive allegations of sexual harassment brought by dental hygienist Magdalend Hazzis. 334, 334–36 (2000) (Roanoke City). 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. This is typically done by a defendant vocally issuing the threat of future harm to a plaintiff. truly extreme and outrageous. [153]. at 433, 437, 166 S.E. The trial court agreed with the defendant that these allegations, even if true, were insufficient to state a claim for IIED, and granted the defendant’s demurrer; the Virginia Supreme Court affirmed the lower court’s judgment. Five cases are discussed in chronological order below. [42]. [24] A few days after this incident, Mrs. May suffered a stroke, and her husband sought damages for her mental suffering.[25]. [15], The stringent outrage and severity requirements aside, the causation element requires only that the wrongful conduct and the emotional distress be causally connected;[16] significantly, it does not require that there be any physical contact between the parties. Id. Plaintiff characterized herself as a shy, modest person, and said that she had two or three sleepless nights, cried a lot and still gets nervous and upset when she thinks about the incident. [59]. . Id. [14]. Employees seeking to bring claims against employers for intentional infliction of emotional distress may be barred by the workers compensation act. [34]. Connelly v. W. Union Tel. 1965)). . 1981). . 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. Id. [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. [21]    RF&P Corp. v. Little, 247 Va. 309, 318, 440 S.E.2d 908, (1994). First, it seems clear that Bodewig could meet the first three elements of the tort of intentional infliction of emotional distress. Id. at 55, 65, 40 S.E. 289 (1991) (Richmond City). In that case, Back to the Beginning:  Applying Virginia Law to, 2019 Law Review Symposium: The 50th Anniversary of the Stonewall Riots, 2018 Law Review Symposium: The 50th Anniversary of the Fair Housing Act, 2017 Law Review Symposium: Defining the Constitution’s President Through Legal & Political Conflict, 2016 Law Review Symposium: National Security in the Information Age, 2015 Allen Chair Symposium: School Inequality: Challenges and Solutions, 2014 Allen Chair Symposium: Lethal Injection, Politics, and the Future of the Death Penalty. illustrates that difficulty. at 67, 40 S.E. Ct. App. at 620. [129]. [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. Intentional Infliction of Emotional Distress is defined as intentionally or recklessly causing another person severe emotional distress through extreme or outrageous acts. [9]    Womack, 215 Va. at 342, 210 S.E.2d at 148. [149]. A. [70]This was unnecessary, Justice Hassell explained, because “physical injury is not an element required to establish the tort of intentional infliction of emotional distress.”[71], This was an extraordinarily important addition: the Supreme Court of Virginia abandoned the “physical impact rule” for cases involving negligence with its 1973 ruling in Hughes v. Moore, but after recognizing intentional infliction of emotional distress claims a year later in Womack v. Eldridge, the court subsequently pared back the scope of Womack with its 1991 holding in Russo v. White. http://thebusinessprofessor.com/intentional-infliction-of-emotional-distress/ What is the intentional infliction of emotional distress? [123], Padilla repeatedly told Williams that she was not interested in him and was offended by his behavior. and clearly differ from cases involving physical or sexual assaults . [58] Russo brought an intentional infliction of emotional distress claim against White, alleging that as a proximate result of his intentional conduct, she experienced “nervousness, sleeplessness, stress and its physical symptoms, withdrawal from activities . [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. Womack, 215 Va. at 342–43, 210 S.E.2d at 148–49. In this episode of Learn About Law we explore the issue of Intentional Infliction of Emotional Distress. Id. 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