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. While some states allow for recovery for negligent infliction of emotional distress, Virginia does not permit this type of recovery.

In situations where a plaintiff has suffered a physical injury, emotional harm is effectively part of the damages associated with the physical personal injury.  For example, if you are in a car accident that resulted in your broken arm, you might also begin to suffer from depression.   You can then recover for the damages related to depression as part of the overall harm caused by the car accident.  However, if you merely suffered from depression after the accident, no matter how severe, you have no cause of action for this injury in Virginia without physical injury or proving that the accident was really intentional.  So, without being accompanied by physical injury or intentional conduct, sleeplessness, nausea, headaches, humiliation, fear, depression, or anxiety alone, are insufficient to state a claim for emotional distress in Virginia.

Intentional Infliction of Emotional Distress
The Virginia Supreme Court has recognized intentional infliction of emotional distress as a cause of action in Womack v. Eldridge, 210 S.E.2d 145 (1974).  In Womack, the court held that four elements must be proved to establish an intentional infliction of emotional distress: 1) the wrongdoer’s conduct was intentional or reckless; 2) the conduct was outrageous or intolerable; 3) there was a causal connection between the wrongdoer’s conduct and the resulting emotional distress; and 4) the resulting emotional distress was severe.  Id. at 148.
This cause of action, however, is disfavored in Virginia because the courts fear that plaintiffs can easily exaggerate or lie about emotional distress.  To guard against frivolous claims, the Courts require that a wrongdoer’s conduct to be so outrageous that it is utterly unconscionable in society. The Supreme Court articulated this standard in Russo v. White:  “‘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.'” Russo 241 Va. 23, 27 (1991) (quoting Restatement (Second) of Torts §46 cmt. j (1965)).  So, insults, racial slurs, or even harassment are generally not sufficiently outrageous to reach this level of unconscionability.

“It is for the court to determine…whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery…” Womack, 215 Va. at 342, 210 S.E.2d at 148.  Merely insensitive or demeaning conduct does not amount to outrageous behavior.  In Harris v. Kreutzer, for example, a brain injury patient alleged that a psychologist, intentionally inflicted emotional distress when she verbally abused the plaintiff, called her a faker and a malingerer, and accused the plaintiff of “putting on a show” despite knowing of the plaintiff’s condition. The Virginia Supreme Court affirmed that these allegations, even if true, were insufficient to state a claim for intentional infliction of emotional distress.  Harris v. Kreutzer, 271 Va. 188 (Va. 2006).

Outrageous and Intolerable Conduct
What then, is conduct so outrageous and intolerable enough to state a cause of action for intentional infliction of emotional distress?  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. Magallon v. Verizon Wireless Unlimited, Inc., 85 Va. Cir. 460 (Fairfax County 2012).
In, Baird v. Rose, 192 F.3d 462 (4th Cir., 1999), a court held that a student who was bullied by a teacher who intentionally attempted to humiliate the student, knowing that she was suffering from clinical depression, may have constituted conduct that was so outrageous as to exceed the bounds of decent society. Id. at 472-473.

In Almy v. Grisham, 639 S.E.2d 182, 273 Va. 68 (Va., 2007), the Court concluded that the defendants’ plan to falsely accuse Almy of writing anonymous letters and wanting her to “really, really, suffer,” amounted to outrageous, intolerable conduct.  In this case, Donna Swanson received several anonymous, handwritten letters that, among other things, accused Donna’s husband, Alan, of infidelity.  In 1998, John Grisham, Jr., the author of The Firm and many other best-selling novels, also received an anonymous letter that appeared to have been written by the same person. Grisham and the Swansons suspected the letter writer as being Katherine Almy, and Almy then filed a suit in a Virginia state court against Grisham and the Swansons, alleging, in part, intentional infliction of emotional distress.  Almy, claimed that the defendants devised a scheme to falsely accuse her of writing the letters.  She alleged that the defendants gave David Liebman, a handwriting analyst, samples of Almy’s handwriting by including copies of confidential documents from her children’s school files, where Alan taught and Grisham served on the board of directors. Almy alleged that Grisham then influenced Liebman to report that Almy might have written the letters and misrepresented this report as conclusive, leading the police to confront Almy.  Almy claimed that she then suffered severe emotional distress and depression, causing “a complete disintegration of virtually every aspect of her life” and requiring her “to undergo extensive therapy.” Almy v. Grisham, 273 Va. 68, 639 S.E.2d 182 (2007).

The defandants’ conduct in this case – their stated intent to have Almy “really, really, suffer;” de­vising a scheme to falsely accuse her of writing the letters and that as part of this scheme, providing “confi­dential documents” removed from the files of Almy’s children’s school to a handwriting expert; and finally, misrepresenting that the handwriting report conclusively held Almy responsible for the letters leading the police to confront Almy – was sufficiently outrageous to the court to qualify as intentional infliction of emotional distress.  However,  most cases in Virginia do not actually meet the standard of “outrageous” or “intolerable” conduct in an intentional infliction of emotional distress case.

Extreme Emotional Distress
In cases of intentional infliction of emotional distress, a plaintiff must also prove by clear and convincing evidence that the emotional distress is extreme. Dean v. Morris, 756 S.E.2d 430, 433 (2014) (defining clear and convincing as “proof that is more than a mere preponderance but less than beyond a reasonable doubt”).  Extreme emotional distress was defined by the Virginia Supreme Court in  Russo v. White, as: The term “emotional distress” travels under many labels, such as, “mental suffering, mental anguish, mental or nervous shock…It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.”…But liability arises only when the emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it.” Russo v. White 241 Va. 23, 27 (1991) (quoting Restatement (Second) of Torts §46 cmt. j (1965)).
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It is quite difficult to win damages in an intentional infliction of emotional distress claim in Virginia. 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 in Virginia is not favored. SuperValu, Inc. v. Johnson, 276 Va. 356, 370 (2008). The statute of limitations for such a claim in Virginia is two years, so if you think you are the victim of intentional infliction of emotional distress and you think you meet the criteria above, you should not delay.