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Plaintiffs in defamation, insulting words, malicious prosecution, abuse of process, and other kinds of lawsuits in which no physical injuries are alleged will frequently add a count to their complaint for intentional infliction of emotional distress (IIED). This choice may better reflect their attorney’s desire to be thorough and pursue every potential cause of action rather than any confidence in its chance to succeed on the merits, or even to overcome the inevitable demurrer. 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]
Without a physical injury, a plaintiff can only rarely recover for IIED. This article uses case examples to demonstrate what elements the Supreme Court of Virginia has held the plaintiff must prove in order to recover for intentional infliction of emotional distress. A cause of action for IIED, unaccompanied by physical injury, will lie when:
One, the wrongdoer’s conduct was intentional or reckless. 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. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. Four, the emotional distress was severe.[2]
By “intentional and reckless,” the Supreme Court of Virginia means the defendant must take purposeful action, at least when the plaintiff alleges that the questioned conduct was intentional. 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. 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.[4] However, when the alleged conduct was merely reckless, rather than intentional, purposefulness is not required. 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]
The requirement that the questioned conduct must have been “outrageous and intolerable” is probably a bigger hurdle than the “intentional or reckless” element. 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. In Harris v. Kreutzer, for example, the plaintiff, a traumatic brain injury patient, alleged that the defendant, a licensed clinical 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 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.[10] Certainly the defendant’s conduct was demeaning to the plaintiff, but it was not outrageous enough to create a cause of action for IIED.
What conduct is 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.[11]
And even if the defendant’s conduct was extreme and outrageous, the plaintiff’s distress must be severe. 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.[13] “[N]ightmares, depression, low self-esteem, shame, and other similar afflictions have likewise been held insufficient . . . .”[14] Without some physical manifestation of injury, or at least treatment for conditions arising from the stress, the plaintiff cannot recover.[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.[17] When there has been physical contact, such as with sexual assault, the plaintiff need not plead any injury to state a claim for intentional infliction of emotional distress, as the test above, on its own terms, applies to claims “independent of any physical injury and unaccompanied by any physical impact.”[18]
Further underlining IIED’s disfavored status is the clear and convincing evidence standard by which every element of the tort must be proved,[19] “i.e., proof that is more than a mere preponderance but less than beyond a reasonable doubt.”[20] “As a general rule, civil litigants are assigned the burden of proving their cases by a preponderance of the evidence.”[21]
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. As a further hurdle, the statute of limitations for a claim of IIED in Virginia is two (2) years,[22] so if you think you are the victim of IIED and meet the criteria above, you may wish to discuss your case with an attorney as soon as possible, before memories fade, witnesses disappear, or your time to file runs out. Good luck.
[1] SuperValu, Inc. v. Johnson, 276 Va. 356, 370 (2008).
[2] Womack v. Eldridge, 215 Va. 338, 342 (1974).
[3] 238 Va. 670 (1989).
[4] Id.; see also, Ruth v. Fletcher, 237 Va. 366 (1989).
[5] 295 Va. 125, 136-37 (2000).
[6] Womack, 215 Va. at 342, 210 S.E.2d at 148.
[7] Russo v. White, 241 Va. at 27, 400 S.E.2d at 162 (internal quotation marks and citation omitted).
[8] Id. (internal citation omitted).
[9] Womack, 215 Va. at 342, 210 S.E.2d at 148.
[10] 271 Va. 188, 624 S.E.2d 24, 2006 Va. LEXIS 11 (Va. 2006).
[11] 85 Va. Cir. 460 (Fairfax County 2012)
[12] Russo, 241 Va. 23, 26, 400 S.E.2d 160, 162, 7 Va. Law Rep. 1253 (1991).
[13] Fentress Families Trust v. Va. Elec. & Power Co., 81 Va. Cir. 67, 86 (Va. Cir. Ct. 2010) (citing Russo v. White, 241 Va. 23, 27, 400 S.E.2d 160, 162-63 (1991)).
[14] Chilton v. Homestead, LC, 79 Va. Cir. 708, 2008 Va. Cir. LEXIS 296 (Va. Cir. Ct. 2008).
[15] See, e.g., McGallon v. Verizon Wireless Unlimited, Inc., 85 Va. Cir. 460, 463 (Fairfax County 2012) (plaintiff stated a claim for IIED where she sought medical attention for her fear, anxiety, depression, and frequent vomiting, and was prescribed Zoloft and another medication to treat her vomiting and post-traumatic stress disorder).
[16] Womack v. Eldridge, 215 Va. 338, 342, 210 S.E.2d 145, 148 (1974).
[17] Naccash v. Burger, 223 Va. 406, 415-16, 290 S.E.2d 825, 830 (1982) (“emotional distress resulting directly from a non-tactile tort may be compensable, provided ‘four elements are shown,’ viz., that the tort is intentional or reckless, that the tort-feasor’s conduct is outrageous and intolerable, that the wrongful conduct and the emotional distress are causally connected, and that the emotional distress is severe.”)
[18] Padilla v. Silver Diner, 63 Va. Cir. 50, 55 (Virginia Beach 2003) (citing Hygh v. Geneva Enters., Inc., 47 Va. Cir. 569, 574 (Fairfax Co. 1997)).
[19] See, Ruth v. Fletcher, 237 Va. 366, 373 (1989) (reversing verdict for plaintiff and finding insufficient evidence that the defendant’s conduct was intentional and reckless when she intentionally convinced plaintiff that he was the father of her child, encouraged a relationship and bonds of affection between the plaintiff and the child, procured child support payments in exchange for visitation, convinced plaintiff’s parents that the child was their grandchild, and then cut off visitation several years later).
[20] Dean v. Morris, 287 Va. 531, 537, 756 S.E.2d 430, 433 (2014).
[21] RF&P Corp. v. Little, 247 Va. 309, 318, 440 S.E.2d 908, (1994)
[22] Luddeke v. Amana Refrigeration, Inc., 239 Va. 203, 207, 387 S.E.2d 502, 504 (1990).