I am asked often whether a person can recover in Virginia for an entirely emotional injury. One where there is no actual physical harm or impact, but where someone suffers emotional harm through harassing conduct or other similar behavior. The Answer is YES, but in Virginia, this type of claim is disfavored by the Courts, and must meet unusual standards of proof.
Virginia recognizes a claim for INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. Generally, one can only recover for emotional harm if there is ALSO contact and physical harm to that person. It is very difficult to prove the state of one’s mind in acting, so this tort is subject to a number of requirements.
- The conduct must be intentional or sufficiently reckless. Ordinarily, claims for injury are based upon negligence, which is conduct that is wrongful, but not intentional, such as harm from a car crash. Not here, the conduct of the defendant must be purposeful.
- The burden of proof is by “clear and convincing” evidence. The ordinary burden of proof in a civil case is “preponderance of the evidence”, and in a criminal case the burden of proof is “beyond a reasonable doubt.” Look at it as the difference between being 51% certain and 99% certain. For this tort, we now have a higher burden of proof, perhaps 75%.
- The conduct must be outrageous and intolerable. There must be a direct cause between the conduct and the harm.
- The emotional harm must be severe.
What is outrageous and intolerable? In a case known as Russo v.White, the legal standard for this question was established by the court. According to the ruling in this case, the conduct must be “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.”
If the conduct of the perpetrator can be shown to meet the standard set forth in Russo, then the plaintiff must prove that there is a causal connection between the intentional conduct and the emotional distress. If the substantial requirement for showing the conduct to be outrageous and intolerable is met, showing the causal connection should be easier.
If the showing of the causal connection is met, the plaintiff must then be able to show that the distress was severe. Like the matter of outrageous conduct, proving severe distress is tough. According to established case law, the distress must be so severe that no reasonable person could be expected to endure it.
In the Russo case, the plaintiff could only show that she was nervous, couldn’t sleep, felt stressed, was withdrawn and could not concentrate at work. This fell well short of the severe standard.
Intentional Infliction of Emotional Distress claims are a tough row to hoe, so to speak. The law, however, is ever changing. Indeed, in the Russo case, three of the seven justices voted in favor of the plaintiff. At The Sandler Law Group, we are game to take on even the most difficult cases. If you have suffered emotional trauma caused by someone else’s outrageous conduct, ASK ABOUT IT! Call toll free 800-9-THE-LAW or (757) 627-8900 to schedule an initial FREE consultation. You may also contact us online at www.sandlerlaw.net or email at GSandler@Sandlerlaw.net.