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. The elements of a prima facie case are (1) intentional or reckless conduct; (2) outrageous and intolerable conduct; (3) a causal connection between the alleged wrongful conduct and the emotional distress; and (4) severe distress.
For conduct to satisfy the “outrageous and intolerable” element, the alleged 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.” Russo v. White, 241 Va. 23, 27 (1991). In other words, to state a claim, the conduct at issue must violate generally accepted standards of decency and morality; mere bad manners are not enough.
The latest example of an unsuccessful attempt to pursue a claim for IIED is the case of Melaney Dao v. Paul M. Faustin, a case involving allegations of a hostile work environment. According to the allegations of the complaint, the plaintiffs were former employees of Infused Solutions, LLC, where defendant Paul Faustin was the Chief Financial Officer. Dao claimed that on one occasion in the beginning of 2017, Faustin grabbed her hand while they were riding in a car together. She shook her hand away and told him not to touch her, but he persisted in a course of conduct involving near-daily unwanted hugs. A second plaintiff also complained of unwanted hugs. The court found that the alleged behavior was certainly “offensive, unacceptable, and wrongful,” but held that the conduct was not sufficiently “extreme or outrageous” to support a claim for IIED.
Another example is Margaret Crittendon v. Arai Americas, Inc. In that case, the plaintiff alleged that the defendants intentionally and recklessly made statements about her in an attempt to damage her reputation and that certain defendants made false statements about her, informing other employees that she was planning a drive-by shooting. Plaintiff also alleged that one defendant intentionally canceled her health insurance. She claimed these actions caused severe emotional distress. The court held the allegations were insufficient to state a claim for recovery under Virginia law.
The court first examined whether the plaintiff sufficiently alleged that her emotional distress was severe. Plaintiff alleged injury, damage, humiliation, inconvenience, embarrassment, litigation expense, denial of employment, severe mental anguish, attorneys’ fees and pain. To be severe, a plaintiff must claim that she had some objective physical injury, sought medical attention, was confined at home or in the hospital, or that she lost income, and the stress must be so severe that no reasonable person could be expected to endure it. Although the plaintiff did allege that she lost income, she offered only two conclusory allegations that she suffered severe emotional distress and did not support the conclusions with facts. Nothing in her complaint suggested that her loss of income resulted from her severe emotional distress. The court held that the alleged injuries did not constitute severe emotional distress and that the plaintiff’s allegations did not meet Rule 8‘s pleading requirements.
Even though the court could have stopped there, it went on to examine the other elements of the tort. To sufficiently plead that the defendants’ conduct was intentional or reckless, the plaintiff was required to plead the defendants had the specific purpose of inflicting emotional distress or that they intended their specific conduct and knew or should have known that emotional distress likely would result. The court noted that intentionally or recklessly taking actions does not amount to intentionally or recklessly inflicting emotional distress. Defendants’ actions may have been vindictive and mean but they do not illustrate an intent to inflict emotional distress. Office gossip is not necessarily designed to cause emotional distress, no matter how mean-spirited. Health insurance cancellations of a previous employee is standard, and absent other factors, simply canceling a former colleague’s health insurance does not meet the requisite level or intent.
What’s clear–regardless of whether you’re in state or federal court–is that plaintiffs must clear a very high hurdle before they can maintain an action for intentional infliction of emotional distress. Very few Virginia courts have found the plaintiff’s allegations sufficient to pursue a claim. Which cases did make the cut? Here are a few examples of cases in which the alleged conduct was found sufficiently outrageous:
- allegations of bullying and humiliation by a teacher of her clinically depressed student;
- an innocent man being photographed and presented as a possible suspect in a child molestation case; and
- a prosecuting attorney who took a series of actions to abuse a defense attorney, such as assaulting the attorney during court, swearing out a warrant for larceny against the defense attorney that he knew lacked probable cause, and releasing documents to a trade publication to damage the defense attorney’s reputation.
Wrongful conduct of a lesser degree of outrageousness and severity is unlikely to support a claim for IIED in Virginia.