Legal Memorandum: Intentional Infliction of Emotional Distress

Issue: Under Virginia law, what are the elements for a claim of intentional infliction of emotional distress?

Intentional infliction of emotional distress (IIED) has four elements: (1) the wrongdoer’s conduct was intentional or reckless; (2) the conduct was outrageous or intolerable; (3) there was a causal connection between the wrongdoer’s conduct and the resulting emotional distress; and (4) the resulting emotional distress was severe.  SuperValu, Inc., et al. v. Johnson, 276 Va. 356, 370, 666 S.E.2d 335, 343 (2008) (citations omitted).  A plaintiff must prove IIED by clear and convincing evidence.  Id. (citing Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160, 162 (1991)).

A circuit court allowed an IIED claim to proceed against a substance abuse counselor in Dawkins v. Richmond Community Hosp., 30 Va. Cir. 377, 383 (1993).  The two plaintiffs were boyfriend (Stone) and girlfriend (Dawkins), and they had a child in common.  Id. at 377-78.  They enrolled in a substance abuse program, and both were treated by Archer, a substance abuse counselor.  Id. at 378.  Archer divulged confidential information disclosed by Stone (Stone had an affair) in order to begin a sexual relationship with Dawkins.  Id.  The court rejected Stone’s claim for IIED, but it allowed Dawkins’ claim for IIED to proceed finding, “If proven, such blatant abuse of a position of trust to gain personal advantage and in this case sexual advantage with a psychologically vulnerable client is sufficiently outrageous and intolerable in civilized society to withstand demurrer.”  Id. at 383.  The court allowed both plaintiffs’ claims to proceed for malpractice.

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