Emotional Distress Doesn’t Always Require Corroboration

Emotional distress claims are tricky because they are so easily faked. Anyone can assert that they suffered unbearable pain and suffering as the result of a defendant’s wrongful act, regardless of the degree of humiliation actually felt. It’s kind of hard to disprove another person’s subjective emotions. The Fourth Circuit has criticized emotional-distress cases for being “easily susceptible to fictitious and trivial claims” and has warned that awards of emotional-distress damages can be set aside when based solely on the plaintiff’s own conclusory, unsupported, subjective assertions. (See Hetzel v. County of Prince William, 89 F.3d 169, 171-72 (4th Cir. 1996); Price v. City of Charlotte, 93 F.3d 1241, 1250 (4th Cir. 1996)). In Virginia state court, however, the Virginia Supreme Court has clarified that corroborating evidence of emotional injury is not a prerequisite for obtaining such damages. And emotional-distress damages can be substantial.

Not every claim allows for the recovery of emotional-distress damages. In fact, as a general rule, emotional-distress damages are not recoverable absent accompanying physical harm or wanton and willful conduct. (See Fairfax Hosp. By & Through INOVA Health Sys. Hosps., Inc. v. Curtis, 254 Va. 437, 445–46 (1997)). An exception to this rule is where a cause of action exists independently of the emotional distress, such as when compensatory damages are expressly permitted by statute. (See Sea-Land Serv., Inc. v. O’Neal, 224 Va. 343, 354 (1982) (“[W]e have approved the recovery of damages for humiliation, embarrassment, and similar harm to feelings, although unaccompanied by actual physical injury, where a cause of action existed independently of such harm.”) Earlier this month, the Supreme Court of Virginia dealt with such a case and held that emotional distress damages were recoverable even in the absence of monetary damages or physical injuries.

The case was Northern Virginia Kitchen, Bath & Basement, Inc. v. Ellis, and it involved Virginia’s racial-harassment statute, Section 8.01-42.1, which provides a civil cause of action for any person who, outside of the employment context, is subjected to race-motivated intimidation or harassment. (Note: The statute was amended in 2020 to also protect against harassment based on a person’s gender, gender identity, sexual orientation, or disability). The statute provides expressly for the recovery of damages, including punitive damages.

The facts were alleged to be as follows. Northern Virginia Kitchen, Bath & Basement (“NVKBB”) is owned by John Powell, who is white. Powell hired William Ellis, a black man, as an independent contractor. NVKBB assigned Ellis to a bathroom remodel project for a customer who eventually ran into some kind of dispute with NVKBB, resulting in the contract being terminated. The customer had no problem with Ellis, though, and she asked him to complete the job independently of NVKBB. Ellis agreed, and when Powell found out, he expressed his strong disapproval by leaving Ellis a couple of voice mail messages conveying the following sentiments:

  • Ellis had made “a ni**er move” that would not work out well for him;
  • “We don’t play that shit down here in Virginia, boy”
  • Stating that he had “better not see [Ellis] over there [at the customer’s house]”
  • Referring to his “motorcycle clubs and gangs”
  • Warning Ellis that he was in “the wrong part of town to be playing that dirty shit”
  • Complaining that Ellis had “pulled the same shit that fucking black people around here do” and had “ruined it for the next black man.”

Ellis certainly didn’t appreciate the comments, but he wasn’t going to do anything legally about it–that is, until NVKBB and Powell sued him for defamation and business conspiracy. When that happened, he filed a counterclaim for violation of the racial-harassment statute and for stalking. NVKBB and Powell’s claims were dismissed, but Ellis went forward on his statutory claims, seeking damages for emotional distress. The trial court granted summary judgment against Powell due to discovery violations, and NVKBB eventually conceded liability, so the only issue at trial was the proper measure of damages.

There wasn’t a whole lot of evidence regarding damages. There were no physical injuries. There were no out-of-pocket monetary losses. There were no medical expenses or expert testimony regarding psychological trauma. All the jury had to go on was Ellis’s own testimony explaining that “ni**er” was a “hurting word” for him, that the voice mail messages were upsetting, and that the references to motorcycle gangs made him fear for swearing-300x181his safety. That was enough for the jury, which awarded Ellis $100,000 in compensatory damages and $150,000 in punitive damages.

NVKBB and Powell appealed, arguing that emotional-distress damages could not be recovered in the absence of monetary or out-of-pocket damages. The Virginia Supreme Court disagreed and upheld the verdict–all $250,000 of it. The court held specifically that Ellis’s testimony that Powell’s messages “made him feel intimidated, harassed, threatened, and humiliated” was all that was needed to support the jury’s verdict.

The court pointed out that this is one of those situations where a cause of action exists independently of emotional distress: Ellis had recovered under two separate statutes that expressly provide for the recovery of both compensatory and punitive damages. Nothing in either statute makes proof of monetary damages or physical injury a prerequisite for obtaining compensatory damages. Noting that “compensatory damages are those allowed as a recompense for loss or injury actually received and include loss occurring to property, necessary expenses, insult, pain, mental suffering, injury to the reputation and the like,” (see Giant of Virginia., Inc. v. Pigg, 207 Va. 679, 685 (1967)), the court held that emotional distress (i.e., mental anguish, humiliation, etc.) is a form of harm for which compensation under these statutes is appropriate.

One thing to keep in mind, however, is that even if uncorroborated emotional distress can sometimes be sufficient for a damages award, the award can still be set aside if the court finds it to be clearly excessive. In the NVKBB case, the Virginia Supreme Court did not get into the issue of whether $250,000 is a reasonable amount of money to award to someone who had to listen to a couple of offensive and threatening voice mail messages but was not otherwise harmed. The reasonableness of the award was not addressed because neither NVKBB nor Powell raised it as an issue. But they could have.

Damage awards must bear a reasonable relationship to the harm sustained by the plaintiff, whether they are for compensatory or punitive damages. (See Richmond Newspapers, Inc. v. Lipscomb, 234 Va. 277, 300-01 (1987); Gazette, Inc. v. Harris, 229 Va. 1, 51 (1985)). If the damages are out of proportion to the injury actually sustained, the verdict may be set aside by the trial court or reversed on appeal. A trial court may set aside a verdict if it shocks the court’s conscience, indicating that the jury was likely motivated by passion or prejudice, or that the jury misconceived or misconstrued the facts or law, or because the verdict is so disproportionate to the injuries suffered as to suggest that it is “not the product of a fair and impartial decision.” (See Edmiston v. Kupsenel, 205 Va. 198, 202 (1964); Poulston v. Rock, 251 Va. 254, 258 (1996)).

Although claims based on the intentional infliction of emotional distress are not favored in the law and can be difficult to prove, claims based on statutes that create causes of action independent of the emotional distress–such as Virginia’s anti-harassment statute and its anti-stalking statute–allow for the recovery of damages for purely emotional injuries, even in the absence of accompanying physical harm or financial injury.


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