Emotional Distress in Virginia: No ‘Easy Money’

emotionaldamagesWhen an individual suffers emotional trauma from the acts of another, it is normal for him to explore the possibility of recovering monetary damages through hiring a lawyer. However, Virginia is an especially difficult jurisdiction for recovering for purely psychological damage.

While some states allow for recovery for negligent infliction of emotional distress, Virginia will not allow a plaintiff to recover for an emotional injury unless it is (1) accompanied by a physical injury; or (2) the result of intentional conduct.

First, in situations where the plaintiff also suffered a physical injury, the emotional harm is effectively part of the damages associated with the physical personal injury. For example, if you are struck by a vehicle that caused you a concussion and you also begin to suffer from anxiety, you can recover for the anxiety as part of the overall harm caused by the car accident. However, if you merely suffered from anxiety after the accident, no matter how severe, you have no cause of action for this injury in Virginia.

Second, intentional infliction of emotional distress occurs when the defendant’s (1) intentional; (2) outrageous conduct; (3) caused the plaintiff; (4) extreme emotional distress. This cause of action is disfavored in Virginia because the courts fear that plaintiffs can easily exaggerate or lie about emotional distress.

To guard against frivolous claims, the Courts require that the conduct be so outrageous that it is utterly intolerable in society. Insults, racial slurs, or even harassment are generally not sufficiently outrageous to reach this standard.

Further, the plaintiff must also prove by clear and convincing evidence that the emotional distress is extreme. Extreme emotional distress generally means that it must be distress more than any reasonable person could be expected to endure. To prove this, a plaintiff should get a doctor to diagnose a serious psychological condition that is caused by the outrageous conduct of the defendant.

Overall, recovering for emotion distress, without a physical injury, is one of the most challenging claims to bring in Virginia. At Winslow & McCurry, we can help you identify whether you have a claim and help guide you through the process of developing the proof necessary to recover your damages.