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 . Ct. App. , 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. 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. Id. at 686. Id. .  The court disagreed, stating that the employer’s “failure to make payments and subsequent filing of court actions and appeals questioning liability simply does not equate with the extreme and outrageous conduct necessary for an emotional distress claim without accompanying physical injury described in Womack.”, In our fourth case, a former employee of the Norfolk Sheriff’s Department, Queen Starks, brought an intentional infliction of emotional distress claim against her former employer, alleging that a co-worker, Diane Woods, had stated to other employees that Starks was a lesbian and had said to her that she didn’t want another employee to “catch anything” from her. Id. at 29, 197 S.E.2d at 216. Development of the Russo Exception: Sexual Harassment and Employer Liability for Intentional Infliction of Emotional Distress. Ct. 2008). In later decades, however, many state courts dropped this requirement and instead simply required objective evidence of mental distress. . 1965)).  For the entire eleven months she worked there, Padilla was subjected to continuous sexual harassment by a co-worker at the restaurant, Dominic Williams. . Although not all offensive conduct qualifies as IIED, when found, a victim can recover damages from the party that caused the trauma. . . , However, the court held that Mr. May did not prove by clear and convincing evidence that Bowles’ statements caused Mrs. May’s stroke, and reversed the trial court’s ruling in Bowles’ favor. . 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- In a somewhat analogous case decided in Virginia last year, Calloway v. Commonwealth, the Augusta County Circuit Court evaluated the claim of a visitor to a detention facility who was subjected to a strip search.  Thus, the defendant employer’s demurrer was overruled. 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. . . 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. at 29, 197 S.E.2d at 216. 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?  More importantly, the dissent took issue with the majority’s finding that Russo alleged no objective physical injury. Id. 247 Va. 150, 439 S.E.2d 394 (1994). Follow University of Richmond Law Review on social media, Early Recognition of Damages for Emotional Distress in Virginia Tort Claims, 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. “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.”.  271 Va. 188, 624 S.E.2d 24, 2006 Va. LEXIS 11 (Va. 2006). 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. . L. 163, 163–64 (1976–77) (noting that courts were initially reluctant to accept the idea of damages for emotional distress in the late 19th and early 20th century, reflecting the view that “insanity and other emotional illnesses were considered to be the result of one’s own sins”). j (Am. .  The court stated that Ellison’s allegations, do no more than detail a scenario carried out daily in the workplace. Id. .  “[N]ightmares, depression, low self-esteem, shame, and other similar afflictions have likewise been held insufficient .  The Supreme Court of Virginia’s 1991 ruling in Russo v. White illustrates that difficulty.  But joining the other three circuit courts, the Norfolk Court held that their reasoning was analogous. 247 Va. 150, 439 S.E.2d 394, 395 (1994). 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. 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. Vol. The court added, however, that where there is a personal injury, emotional distress is a proper element of damages. 201, 209 (W.D. 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. Category: Intentional Infliction of Emotional Distress. . at 28, 400 S.E.2d at 163. . Padilla v. Silver Diner, 63 Va. Cir. Hughes v. Moore, 214 Va. 27, 34, 197 S.E.2d 214, 219 (1973).  After a check of the surrounding area and an audit of the cash register revealed no missing money, the manager then told Bodewig to accompany a female assistant manager to the women’s public restroom, where she would be strip-searched in order to prove to Golden that she didn’t have the money on her person. . . 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. A. ); City of Richmond v. Braxton, 230 Va. 161, 162, 164–65, 335 S.E.2d 259, 260–62 (1985) (ticket-seller at city-owned theatre who was molested by her supervisor at the place of and during the hours of employment, did not suffer an accident arising out of the employment, since there was no causal connection between the injury and the employment as the finding that the employee would have been equally exposed to the risk of the hazard of being molested outside of work); Morgan v. Brophy, 94 Va. Cir. 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. A number of cases show that sexual harassment claims that arise in the workplace will be treated differently than might be expected under the Russo doctrine. . 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. The actions of the K-Mart manager in subjecting her to a strip search at her place of employment, during working hours, and in circumstances directly related to her employment (specifically, in response to a customer’s accusation of theft by the employee), arguably led to her injury “by accident arising out of and in the course of employment.” Bodewig’s counter argument would be that there was no accident giving rise to an injury, and that would seem to be a convincing argument under the precedent set by Middlekauff v. Allstate Insurance. Intentional Infliction of Emotional Distress In 1985, the U.S. Court of Appeals for the Fourth Circuit, which hears appeals from the federal district courts of Virginia, ruled that an individual could recover against a third person for interference with a marriage under a theory of intentional infliction of emotional distress, despite the abolition of alienation of affection. Id. at 151, 439 S.E.2d at 394, 395. In other words, since the seminal case for intentional infliction of emotional distress was based on such extraordinary facts, it is fair to ask to what extent subsequent cases that didn’t quite rise to the level of those extraordinary facts were somehow deemed less outrageous, and thus viewed in an unfavorable light towards the plaintiff. . 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. First, it seems clear that Bodewig could meet the first three elements of the tort of intentional infliction of emotional distress. 289 (1991) (Richmond City). , 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. 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.  See, e.g., McGallon v. Verizon Wireless Unlimited, Inc., 85 Va. Cir. 330, 330–31 (1987) (Henrico County). Without a physical injury, a plaintiff can only rarely recover for IIED.  Golden became loud and argumentative, which soon attracted the attention of the K-Mart manager. 214 Va. 27, 197 S.E.2d 214 (1973). Let us hope Virginia revisits the question again soon. Seitz’s supervisor would only say that he “used coercive and unethical tactics” in dealing with the vendors. Workers must not be so thin-skinned as to allow themselves to be unnerved by the rough and tumble of everyday life. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. . . at 30, 400 S.E.2d at 164 (Hassell, J., dissenting).  Moore sued Hughes for personal injury, and Moore’s physician testified at her trial that she was “experiencing physical pain in her body from the emotional disturbance and that her condition presented a serious mental problem.” He added that “[t]he pain was real, and ‘not imaginary.’” Her physician further opined that “there was a ‘causal connection’ between the automobile striking plaintiff’s home and her emotional and physical condition.”, The Hughes court noted that Virginia courts had permitted recovery in the past for mental distress and physical injuries unaccompanied by actual physical contact where the injuries were caused by a willful, intentional tort. Padilla v. Silver Diner, 63 Va. Cir. . . at 55, 40 S.E. 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.  RF&P Corp. v. Little, 247 Va. 309, 318, 440 S.E.2d 908, (1994). . 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. . at 424–28, 166 S.E. Industries, 237 Va. 466, 467–68, 470–71, 377 S.E.2d 627, 628–30 (1989) (woman working alone in a furniture store who was sexually assaulted by man who entered the store through employees’ entrance, forcibly took her into the bathroom, and raped her twice before robbing the store was victim of sexual assault that was personal to her and not directed at her because she was an employee, so her claims not barred by Workers’ Comp. 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. In this way, the second element of the tort may not have been an easy one to meet. , Padilla repeatedly told Williams that she was not interested in him and was offended by his behavior. Infliction of Emotional Distress-Cases Auth., 823 N.E.2d 1249, 1254–55 (Mass. However, the court held that Mr. May did not prove by clear and convincing evidence that Bowles’ statements caused Mrs. May’s stroke, and reversed the trial court’s ruling in Bowles’ favor. . The employer argued that Abney’s intentional infliction of emotional distress tort claim was barred by the exclusivity provision of the Virginia Workers’ Compensation Act, and the court agreed. Id. Id. 241 Va. 23, 400 S.E.2d 160 (1991). . Intentional Infliction of Emotional Distress (IIED) occurs when your employer purposely causes severe emotional distress to you as a result of extreme and outrageous conduct. Assuming that the first element—intentional action—is met, the plaintiff must meet the second requirement, that of outrageous conduct. 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. Company as discussed above. at 27, 400 S.E.2d at 163 (quoting Restatement (Second) of Torts § 46 cmt. 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. 69 Va. Cir. 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. The result would be a better workplace and a more balanced view of employee rights. 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