The scope of this legal duty -- and how a plaintiff's standing is determined -- … For although the tort of intentional infliction of emotional distress is recognized in Virginia, the standards for successfully making the claim are extraordinarily high. 2019). 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,” there was an exception to this rule.  Other courts soon followed California’s lead in taking a broad view of intentional infliction of emotional distress claims. 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. 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. 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).  Womack, 215 Va. at 342, 210 S.E.2d at 148. Id. It is worth noting, however, that while the facts in.  Bodewig, a modest woman in her twenties, alleged that as a result of her being subjected to a strip search and close monitoring by her employer, she experienced “two or three sleepless nights, cried a lot and still [got] nervous and upset when she [thought] about the incident.”. at 28. While some states allow for recovery for negligent infliction of emotional distress, Virginia does not permit this type of recovery. 47 Va. Cir. , Hygh brought a number of claims against Beltran and the company, including a claim for intentional infliction of emotional distress, before the Fairfax County Circuit Court. 99 Va. Cir. at 26, 28. at 28, 400 S.E.2d at 163. at 624. at 67, 40 S.E. See, e.g., Rodriguez v. Cambridge Hous. The term “emotional distress” is not self-defining, and is one that historically has been viewed with some skepticism. K-Mart contends there is no objective evidence of the distress, such as medical, economic or social problems. Occasionally, the behavior and resulting emotional damage may be severe enough that is constitutes a successful legal claim for “intentional infliction of emotional distress.” However, absent a physical injury to accompany the emotional one, it is especially difficult to prove all the necessary elements of the claim. . at 55; see also Russo v. White, 241 Va. 23, 28, 400 S.E.2d 160, 163 (1991). Without more, they are hardly ‘so severe that no reasonable person could be expected to endure’ them.” The court ruled that Starks’ “bare assertion” that her co-worker’s statements caused her “severe emotional distress and severe depression” did not satisfy the fourth element, and sustained the defendant employer’s demurrer. 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. 708, 2008 Va. Cir. Id. , A significant shift began a few years later, however, with the 1997 decision in Hygh v. Geneva Enterprises, Inc. That case involved Vernetta Hygh, a receptionist at a car dealership called Geneva Enterprises. . 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. Id. 569, 574 (Fairfax Co. 1997)). . Law Inst. . Id.  Rather, held the court, the plaintiff, “an alleged victim of sexual assault, need not plead with graphic specificity any additional objective physical injury.” The court said: “The victim of a sexual assault clearly experiences severe emotional distress that no reasonable person could be expected to endure.” Therefore, the employer’s demurrer was overruled and Hygh could pursue her claim, even without a showing of physical injury. 1965). LEXIS 296 (Va. Cir. 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)). 100 Va. 51, 53–54, 40 S.E. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. L. Rev. 1981). Not that Virginia courts were alone in tightening the standard. Id.  Finally, Padilla stopped working at the Silver Diner, and brought her claim of intentional infliction of emotional distress against Williams and the company, claiming liability under the theory of respondeat superior. Ellison v. St. Mary’s Hosp., 8 Va. Cir. 24 Va. Cir. 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.  Her supervisor then enlisted the aid of another employee, Nevin Wimer, in escorting Abner out of his office and off the store premises.  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.”. 1965). Id.  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. 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. 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. Is intentional infliction of emotional distress a viable tort in Virginia? Id.  Womack v. Eldridge, 215 Va. 338, 342 (1974). Id. at 557. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.” . He agreed to have her take his picture, and that photograph was later used as one of a series presented in court to the child victims of abuse in an effort to have them identify the perpetrator. 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. . . 569 (1997) (Fairfax County). . See, e.g., David J. Leibson, Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, 15 J. Fam. . . 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. 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. plaintiff became nervous and suffered from sleeplessness and a loss of appetite over a period of about two years. at 29–30, 197 S.E.2d at 216–17. at 791 (quoting Zelinsky v. Chimics, 175 A.2d. 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..  For the entire eleven months she worked there, Padilla was subjected to continuous sexual harassment by a co-worker at the restaurant, Dominic Williams. Id. See generally Va. Code Ann. Assuming that the first element—intentional action—is met, the plaintiff must meet the second requirement, that of outrageous conduct. illustrates that difficulty. , Golden returned about ten minutes later, and then asked Bodewig what she had done with her money. Lower courts have done so in some recent sexual harassment cases. 618, 619 (1902). Ct. App. . One of the first Virginia cases to consider the question of whether the tort of negligence on the part of a defendant might subject him or her to damages arising from emotional distress suffered by a plaintiff is Connelly v. Western Union Telegraph Co. In that 1902 case, the Supreme Court of Appeals of Virginia recognized the claim of negligently inflicted emotional distress, but added that “mental anguish and suffering resulting from mere negligence, unaccompanied with injuries to the person, cannot be made the basis of an action for damages.” The plaintiff Connelly had not alleged any physical injury, only shock and outrage for the failure of Western Union to timely notify him of his father’s death and subsequent funeral, and so the court dismissed his claim. The answer has changed over the course of the last two decades. 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. 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. Id. § 65.2-307 (Repl. In Russo, the court added the requirement that a plaintiff in an intentional infliction of emotional distress case prove “objective physical injury caused by the stress, [or] that she sought medical attention, [or] that she was confined at home or in a hospital,” and that the plaintiff prove the tort by “clear and convincing evidence.”, To place this in a broader context, consider that in the 1970s, as intentional infliction of emotional distress claims began to be recognized by courts across the country, those courts at first required that whatever emotional distress the plaintiff might have experienced manifest itself in some physical injury to the body, such as no longer being able to breast feed or suffering a significant weight loss—that is, a physical injury to the body resulting from the emotional distress. Frankly, it seems an odd result that a woman like Linda Bodewig, who is strip searched and who suffers the predicable response of sleeplessness, nervousness, and stress, will not recover damages, while an employee who is subjected to repeated propositioning at work, like Annemarie Padilla, can succeed on her claim. , Finally, we have the 2011 case of Paul Blakeman, who brought an intentional infliction of emotional distress claim against his employer when he was fired for testing positive for cocaine as a result of a random drug test. truly extreme and outrageous.  But Virginia courts would not be among them. Good luck. . . Supp. 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. We hold, however, that where the claim is for emotional disturbance and physical injury resulting therefrom, there may be recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party properly pleads and proves by clear and convincing evidence that his physical injury was the natural result of fright or shock proximately caused by the defendant’s negligence. The outrageousness requirement “is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved.” “It is insufficient for a defendant to have acted with an intent which is tortious or even criminal.” 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.” “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 ….” Merely insensitive or demeaning conduct does not amount to outrageous behavior. Hazelwood, 249 Va. at 373, 457 S.E.2d at 58. §§ 65.2-100 to -1310 (Repl. Padilla, 63 Va. Cir. Five cases are discussed in chronological order below. For example, in 1992 the North Carolina Supreme Court held in Waddle v. Sparks, 414 S.E.2d 22, 27–28 (N.C. 1992), that a plaintiff in an intentional infliction of emotional distress claim had to show a severe and disabling injury, defining the term “severe emotional distress” to mean “emotional or mental disorder, such as . 50, 51 (2000) (Virginia Beach City). 468 P.2d 216, 217–18 (Cal. Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. . 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.”, His supervisor told him that if he resigned, “he would get severance and vacation pay, and the [company] would tell potential employers he resigned.” 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. Life Ins. Russo v. White, 241 Va. 23, 25, 400 S.E.2d 160, 161 (1991). The court said: “Defendant belittles these symptoms, but it is the distress which must be severe, not the physical manifestations.”, 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.” The court concluded that Bodewig’s evidence of severe emotional distress was sufficient to go to a jury.. , 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. , III.  But rather than simply moving on, Linda Bodewig brought a tort action in the Oregon court for intentional infliction of emotional distress, seeking damages against both her former employer and Golden. 170 Va. 329, 196 S.E. 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. 2017 & Cum. But as will be explained below, such was not to be the case. Did Someone Intentionally Inflict Emotional Distress Upon You? As noted above, 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 emotion distress. , Hygh argued that her claim satisfied the necessary elements, and “that the only element in question [was] whether [her] emotional distress was severe.” She “alleged ‘objectively verifiable evidence’ of her distress including, but not limited to, inability to return to work or college and consultation with mental health care professionals.”, The court held that a victim of sexual assault experiences trauma which greatly differed from the type suffered by the plaintiff in Russo, in which the court required a showing of physical injury resulting from the outrageous conduct. 215 Va. 338, 342, 210 S.E.2d 145, 148 (1974). 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 . Bodewig v. K-Mart, Inc., 635 P.2d 657, 662 (Or. , And even if the defendant’s conduct was extreme and outrageous, the plaintiff’s distress must be severe. This Article first traces the development of the tort of intentional infliction of emotional distress as applied to the workplace in the Commonwealth of Virginia in Part I, and offers some observations about the significant hurdles a plaintiff may face in trying to successfully hold an employer accountable for conduct that many in our society would deem unacceptable.  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. 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.. Faced with the high standard of meeting the second element of the tort—“outrageous conduct”—as set forth in Womack, coupled with the fourth element’s physical injury standard set forth in Russo, it would appear that the Virginia courts are willing to abide a wide range of mistreatment by employers without finding liability for intentional infliction of emotional distress. Id. The paraphrased description of this incident is taken from Bodewig v. K-Mart, Inc., 635 P.2d 657, 658–60 (Or. For a comprehensive look at (and critique of) the emergence of the tort of intentional infliction of emotional distress in the workplace, see Dennis P. Duffy, Intentional Infliction of Emotional Distress and Employment at Will: The Case Against “Tortification” of Labor and Employment Law, 74 B.U. Intentional Infliction of Emotional Distress 1. at 27, 400 S.E.2d at 163 (quoting Restatement (Second) of Torts § 46 cmt. Accordingly, the Defendants’ demurrer is overruled. at 28–29, 197 S.E.2d at 215–16. at 55 (citation omitted). The four elements which must be shown in order to recover for intentional infliction of emotional distress in Virginia have been set forth in footnote 4.  This distinction is important, as the objective evidence could simply be testimony from a doctor that the plaintiff was suffering from nightmares, or dizziness, or experienced periods of sadness and depression. In this way, the Virginia court joined the majority of jurisdictions in abandoning the “physical impact rule.” See supra note 21. resulted in an obvious mechanical or structural change in the human body.” An injury that is the result of the willful and intentional assault of either a fellow employee or a third person does not prevent the injury from being accidental within the meaning of the Act. 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. The Supreme Court of Virginia, in Ruth v. Fletcher, 237 Va. 366, 377 S.E.2d 412 (1989), noted that although Womack permitted recovery under a claim of intentional infliction of emotional distress, the Court was “careful to add limiting language” to the fourth element of the tort (severe emotional distress) so as to set a very high bar. .  Russo v. White, 241 Va. at 27, 400 S.E.2d at 162 (internal quotation marks and citation omitted). . .  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. . . . Restatement (Second) of Torts § 46 cmt. . 1970). 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.  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. . d (Am. 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. . b (Am. . .  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. How would she have fared then? at 26, 400 S.E.2d at 162. May. Intentional Infliction of Emotional Distress Claims in the Workplace. As the Hygh court stated, a sexual assault victim “need not plead with graphic specificity any additional objective physical injury,” as sexual assault victims experience “severe emotional distress that no reasonable person could be expected to endure.”.  Luddeke v. Amana Refrigeration, Inc., 239 Va. 203, 207, 387 S.E.2d 502, 504 (1990). Intentional infliction of emotional distress (“IIED”) is an alternative claim to defamation that plaintiffs may pursue and is a civil tort that involves conduct that is so terrible and outrageous that it causes severe emotion distress and trauma to the victim. at 34, 197 S.E.2d at 219. 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. Dr. Stephen Allred, An Analysis of Intentional Infliction of Emotional Distress Claims in the Virginia Workplace, 54 U.R. , In addition to negligence claims, the Virginia courts considered the question of damages for emotional distress in 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. Seifert’s attorney planned to use Womack’s photograph “as evidence in the trial of Seifert, who was charged with sexually molesting two young boys.”. .  Id. Id.  She complained to her supervisor and the operating manager at the restaurant several times. at 53 (citing Richmond Newspapers v. Hazelwood, 249 Va. 369, 373, 457 S.E.2d 56, 58 (1995)); see also City of Richmond v. Braxton, 230 Va. 161, 162–65, 335 S.E.2d 259, 260–62 (1985) (holding that a sexual assault on a female employee was of a personal nature and not directed against the employee as part of the employment relationship). . 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. Emotional distress damages can be a major component of recovery in many kinds of personal injury cases.If you are injured in an accident and you file a successful personal injury lawsuit, you can usually get compensation for your emotional harm (this is often a component of "pain and suffering") in addition to recovery for the more straightforward economic losses (medical bills, lost … Padilla v. Silver Diner, 63 Va. Cir. at 25, 400 S.E.2d at 161. at 555–56.  He “proposition[ed] her on numerous occasions in an extremely vulgar manner,” spanked her rear end, placed his face against her breasts, asked her when they were going to have sex, and once caused her to burn herself when he pushed her against a hot oven. 1991)). 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. Feelings are involved alleged conduct was outrageous and intolerable enough to state a cause of action intentional. Unnerved by the workers compensation act two years the attention of the Russo had... ( 2011 ) ( Norfolk City ) be a better Workplace and a loss of appetite over a of. Golden returned about ten minutes later, and her husband sought damages for emotional distress in! 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