2.4 INFLICTION OF EMOTIONAL DISTRESS
2.401 In General. Claims based on the intentional or negligent infliction of emotional distress are disfavored in Virginia and are rarely successful. In fact, the Virginia Supreme Court has recognized this claim's disfavored status and the difficulty in identifying objective elements defining a claim for infliction of emotional distress. 342 The majority of Virginia courts
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considering the issue have held that none but the most heinous acts are sufficiently "outrageous" or create sufficiently severe distress to meet the high standards imposed by the Virginia Supreme Court. It is tempting to add this claim of injury to other tort actions. For example, a large number of cases filed by employees under federal employment discrimination statutes, such as for racially motivated discharge or sexual harassment, allege the tort claim of intentional or negligent infliction of emotional distress.
2.402 Negligent Infliction of Emotional Distress.
A. Elements. Virginia recognizes a cause of action for negligent infliction of emotional distress if that distress is accompanied by physical injury. The elements of the tort are stated in Hughes v. Moore: 343
[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. 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 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 negli-gence. 344
B. Standard of Proof. Negligent infliction of emotional distress must be proved by clear and convincing evidence. 345
C. Physical Injury Requirement. In an action alleging negligent infliction of emotional distress, the plaintiff must prove that he or she suffered physical injury that was the natural result of fright or shock proximately caused by the defendant's negligence.
In Hughes, the "physical impact" was clearly the result of stress rather than an actual touching. The plaintiff alleged that she was looking
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through a window in her house when the defendant crashed his car into her front porch. She suffered no physical injuries as a result of the collision but was affected physically by the stress: "She could not breast-feed her three-month-old baby for lack of milk, and her menstrual period started." 346 The court held that there could be a recovery in such a case because the plaintiff provided proof of a "clear and unbroken chain of causal connection between the negligent act, the emotional disturbance, and the physical injury." 347 In Delk v. Columbia/HCA Healthcare Corp., 348 the court again analyzed the physical injury requirement. In Delk, the plaintiff, a psychiatric patient, was sexually assaulted by a person believed to be HIV-positive. She alleged that she incurred "severe mental, emotional and physical trauma." 349 Characterizing this as a mere "conclusional allegation," the court noted the pleading was
not sufficient to support a cause of action for negligent infliction of emotional distress. Delk failed to plead with specificity that she incurred a physical injury which was the natural result of fright or shock proximately caused by the defendants' alleged negligence. Delk fails to provide any description of her physical injury in her amended motion [for judgment]. Therefore, we hold that the circuit court did not err in dismissing this claim. 350
2.403 Intentional Infliction of Emotional Distress.
A. Elements. Virginia has recognized the tort of intentional infliction of emotional distress since 1974. (In other jurisdictions, this claim
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is often called the "tort of outrage.") In Womack v. Eldridge, 351 the court held that
[w]e adopt the view that a cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown:
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. 352
The court has revisited these elements, finding that a "predicate requirement for any claim of intentional infliction of emotional distress is that the alleged harmful conduct was directed intentionally toward the affected individual." 353 Accordingly, conduct by a business occurring in the course of its business dealings with another company cannot support a claim for intentional infliction of emotional distress no matter how closely associated an individual is with the victim company. "[T]he tort of intentional infliction of emotional distress does not encompass such personal consequences of business conduct." 354
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Furthermore, the court has made it clear "that unlike a claim for negligence, a plaintiff bringing a claim for intentional infliction of emotional distress must allege all facts necessary to establish the cause of action to withstand challenge on demurrer." 355
B. Standard of Proof. Most courts, including the Virginia Supreme Court in Russo v. White, 356 have held that these four elements must be proved by clear and convincing evidence. Although the Russo opinion recites that this was the court's holding in Womack, nowhere in Womack is the clear and convincing evidence standard articulated regarding a claim of intentional infliction of emotional distress. 357 But given the difficulty of establishing the tort, the ease with which the principal elements may be fabricated, and the fact that claims for negligent infliction of emotional distress are plainly governed by a "clear and convincing evidence" standard, counsel should assume that the Russo court's statement of the law is correct, even though the basis for the statement is demonstrably incorrect.
C. Outrageousness. As a general matter, the determination as to whether a defendant's conduct is so outrageous and intolerable that recovery should be permitted is one for the jury. 358 "[I]t is for the jury, subject to
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the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability." 359 But "[i]t 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." 360 While recognizing that "the term 'outrageous' does not objectively describe particular acts but instead represents an evaluation of behavior," the court, in response to a demurrer, must nevertheless make a "threshold assessment in determining the sufficiency of [a plaintiff's] allegations." 361
In Delk v. Columbia/HCA Healthcare Corp., 362 the plaintiff, a psychiatric patient with a history of mood disorders in need of 24-hour supervision and surveillance, alleged that, due to the hospital's negligence, she was sexually assaulted by another patient who was believed to be HIV-positive. The plaintiff alleged that the assault was observed and documented by the staff, but that no action was taken and no medical notation made. Although the court found no cause of action had been stated for negligent infliction of emotional distress, it held that the plaintiff had pled sufficient facts to state a claim for intentional infliction of emotional distress:
Certainly, a finder of fact could conclude that the defendants acted recklessly if Delk presents evidence at a trial that the defendants knew she may have been exposed to HIV, but failed to inform her so that she could have taken preventive measures to avoid
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transmission of the potentially fatal disease to her husband. 363
In a recent federal court case, Daniczek v. Spencer, 364 the court detailed several factors that federal and lower state courts have considered when addressing the outrageousness element of an intentional infliction of emotional distress claim. The Daniczek court stated, "[i]ndividually, acts undermining a plaintiff's employment or abusing a plaintiff are not outrageous. . . . However, exacerbating factors can make otherwise non-outrageous actions become outrageous." 365
The Daniczek court then listed three exacerbating factors recognized by Virginia courts that were present in this case:
First, the conduct, manner, or means associated with undermining a plaintiff's employment may create outrageousness. . . . Second, allegations may be outrageous in the aggregate: the duration and cumulative nature of misconduct is relevant to finding outrageousness. . . . Third, the abuse of a position of authority is also relevant to finding outrageousness. 366
After applying these factors, the Daniczek court found that the plaintiff had stated a "legally plausible" claim for intentional infliction of emotional distress. 367
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The question of whether illegal discrimination is outrageous conduct per se is unsettled in Virginia. 368 While the Virginia Supreme Court has not addressed that issue, some opinions, presenting and deciding distinctly different questions, do suggest that the "outrageousness" test may be satisfied by conduct that occurs in the workplace.
An early but interesting case on this subject from a Virginia circuit court is Mulvey v. Gondles, 369 in which the plaintiff...
