170 Va. 329, 196 S.E. Justice Hassell noted that Russo’s amended motion alleged significant emotional distress, as follows: “As a proximate result of defendant’s intentional acts, plaintiff suffered severe emotional distress resulting in nervousness, sleeplessness, stress and its physical symptoms, withdrawal from activities which might necessitate plaintiff leaving her daughter at home, lack of concentration at work to the point where she received a reprimand.” Id. In this episode of Learn About Law we explore the issue of Intentional Infliction of Emotional Distress.  In other words, as the Supreme Court of Virginia held in its first decision interpreting the Act, Bradshaw v. Aronovitch,, [t]he expressions “arising out of” and “in the course of” the employment are not synonymous; but the words “arising out of” are construed to refer to the origin or cause of the injury, and the words “in the course of” to refer to the time, place, and circumstances under which it occurred.  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. 50, 51 (2000) (Virginia Beach City). 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. . 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 . , 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, the assault must be “personal to the employee and not directed against him as an employee or because of his employment.”, 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. , Our third case involved a plaintiff named Lorine Spence, who brought an intentional infliction of emotional distress claim against her employer, arguing that the company’s failure to make timely payments mandated by the Industrial Commission of Virginia as a result of Spence’s job injury award was outrageous conduct. 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. 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. 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. 366, 366–67, 372 (1989) (Virginia Beach City). Id. 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. 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. Id.  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. at 34, 197 S.E.2d at 219. 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. 67, 86 (Va. Cir. A few days after this incident, Mrs. May suffered a stroke, and her husband sought damages for her mental suffering.  The plaintiff had “sought medical attention for her fear, anxiety, depression, and frequent vomiting . 569 (1997) (Fairfax County). 2017 & Cum. 428, 428 (1986) (Richmond City).  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. . Hughes, 214 Va. 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. . . 351, 354 (Pa. Super. 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.” The trial court held that the action was barred by the exclusivity provision of the Virginia Workers’ Compensation Act, 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.” 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.. Four, the emotional distress was severe. . . 1983). In the cases at hand, the Plaintiffs have sufficiently alleged physical and emotional injuries resulting from physical and sexual abuse by Williams and Miller. See, e.g., David J. Leibson, Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, 15 J. Fam. Id. But not all emotional injuries are caused by intentional or reckless action—sometimes ordinary negligence is to blame. 1981). 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. Ct. App. at 795. . Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim “Outrageous!”, This must be more than the hurt feelings or perceived slights that may occur in the typical American workplace. Intentional Infliction of Emotional Distress Claims in the Workplace. 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. 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. . Three, there was a causal connection between the wrongdoer’s conduct and the emotional distress. 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. E.S.I.S., Inc., 18 Va. Cir. 215 Va. at 342, 210 S.E.2d at 148. 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