See, e.g., David J. Leibson, Recovery of Damages for Emotional Distress Caused by Physical Injury to Another, 15 J. Fam. Id. at 791 (quoting Zelinsky v. Chimics, 175 A.2d. at 686. . at 624. Before we return to the plight of Linda Bodewig set forth at the beginning of this article, a brief detour is in order: what role does Workers’ Compensation play in these cases? The court adhered to the common law rule that damages for emotional distress alone, as an independent cause of action, were never allowed. 215 Va. at 342, 210 S.E.2d at 148. [14]  Chilton v. Homestead, LC, 79 Va. Cir. Assuming the third element—causal connection—is met, some courts (including those in Virginia) have also set a very high standard in order to meet the fourth element, proof of severe emotional distress. Id. [21], In addition to negligence claims, the Virginia courts considered the question of damages for emotional distress in defamation cases. at 55, 40 S.E. K-Mart contends there is no objective evidence of the distress, such as medical, economic or social problems. [100] Further, the court held, Blakeman did “not allege any objective physical injury caused by the stress” of having to take a drug test, nor did he require medical attention, and thus he did not meet the fourth prong of the test either.[101]. Let us hope Virginia revisits the question again soon. [57]. [147], Elaborating on these terms, the Bradshaw Court explained that “[a]n accident occurs ‘in the course of the employment’ when it takes place within the period of the employment, at a place where the employee may reasonably be, and while he is reasonably fulfilling duties of his employment or engaged in doing something incidental thereto.”[148] Further, the court found, the Act requires “a causal connection between the conditions under which the work is required to be performed and the resulting injury.”[149] The court explained that “if the injury can be seen to have followed as a natural incident of the work and to have been contemplated by a reasonable person familiar with the whole situation . Id. [72]. 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,”[129] there was an exception to this rule. The physical manifestation rule requires that a plaintiff exhibit a physical injury or symptom as the “direct and natural result of the initial emotional distress” suffered. [32]. 301, 301–03 (2016) (Chesapeake City) (employee claim for intentional infliction of emotional distress against employer where her supervisor cursed her and shoved boxes at her was victim of an assault, and her injury did not arise out of the employment as it was personal, so the Workers’ Compensation Act did not bar her claim); Morgan v. MDC Holdings, Inc., 54 Va. Cir. These constitute “objective evidence of emotional distress” but not a “physical injury to the body.” But in Virginia, Russo represented a tightening of the tort’s requirements, adhering to a physical injury standard at a time when other courts seemed to be more open to claims of emotional distress.[75]. [84]. He agreed to have her take his picture, and that photograph was later used as one of a series presented in court to the child victims of abuse in an effort to have them identify the perpetrator. 100 Va. 51, 53–54,     40 S.E. [17] When there has been physical contact, such as with sexual assault, the plaintiff need not plead any injury to state a claim for intentional infliction of emotional distress, as the test above, on its own terms, applies to claims “independent of any physical injury and unaccompanied by any physical impact.”[18], Further underlining IIED’s disfavored status is the clear and convincing evidence standard by which every element of the tort must be proved,[19] “i.e., proof that is more than a mere preponderance but less than beyond a reasonable doubt.”[20] “As a general rule, civil litigants are assigned the burden of proving their cases by a preponderance of the evidence.”[21]. 69 Va. Cir. More critically, why should this additional requirement be the law at all, since, as Justice Hassell made clear in his Russo dissent, physical injury is not a necessary element under traditional intentional infliction of emotional distress analysis? 105-109 East High Street | Charlottesville, Virginia 22902 | 434-977-4455 The requirement that the questioned conduct must have been “outrageous and intolerable” is probably a bigger hurdle than the “intentional or reckless” element. Specifically, stated the court, Russo and its progeny addressed emotional distress claims that were “independent of any physical injury and unaccompanied by any physical impact,” . Because the elements of pleading and proof are so elevated, a victim of intentional infliction of emotional distress who has not suffered a physical contact may find it difficult to get past even the initial stages of his or her case without legal representation. A cause of action for IIED, unaccompanied by physical injury, will lie when: One, the wrongdoer’s conduct was intentional or reckless. Id. [140] The plaintiff had “sought medical attention for her fear, anxiety, depression, and frequent vomiting . “The purpose of the rule requiring physical impact is to prevent ‘illusory or imaginative or faked’ claim.” Id. Id. . Bodewig might also face an argument by the defendant employer, K-Mart, that the Virginia Workers’ Compensation Act provided her exclusive remedy. In other words, since the seminal case for intentional infliction of emotional distress was based on such extraordinary facts, it is fair to ask to what extent subsequent cases that didn’t quite rise to the level of those extraordinary facts were somehow deemed less outrageous, and thus viewed in an unfavorable light towards the plaintiff. at 151, 439 S.E.2d at 395–96 (citing Va. Code Ann. Frankly, it seems an odd result that a woman like Linda Bodewig, who is strip searched and who suffers the predicable response of sleeplessness, nervousness, and stress, will not recover damages, while an employee who is subjected to repeated propositioning at work, like Annemarie Padilla, can succeed on her claim. Bodewig v. K-Mart, Inc., 635 P.2d 657, 662 (Or. The Virginia Supreme Court recognized this intentional tort as a cause of action in Womack v. Eldridge , 215 Va. 338, 210 S.E.2d 145 (1974). truly extreme and outrageous. [159] Further, Abney’s injuries occurred at her place of employment, during working hours, and in circumstances directly related to her employment—or at least directly related to her discharge from employment. Padilla, 63 Va. Cir. at 372–73 (citing Johnson v. McKee Baking Co., 398 F. Supp. As the Hygh court stated, a sexual assault victim “need not plead with graphic specificity any additional objective physical injury,”[142] as sexual assault victims experience “severe emotional distress that no reasonable person could be expected to endure.”[143]. [145]. 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. [102]. 1981). was caused by an identifiable incident or sudden precipitating event, and (3) . In order to obtain a photograph of Womack, Rosalie Eldridge went to his home, telling him she was “a Mrs. Jackson from the newspaper and that she was writing an article on Skateland,” where Womack worked as a coach. Asked Bodewig what she had done with her money law we explore the of! 373, 457 S.E.2d intentional infliction of emotional distress virginia 219 the party that caused the trauma Dean v. Morris, 287 531. 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