New Trends in Emotional Distress?

The Supreme Court of Virginia has determined that racially charged messages and threats were sufficient to support a cause of action for racially motivated harassment and stalking. The Court upheld a monetary award to a claimant, notwithstanding the absence of proof of a physical injury or proof of monetary damages. This can be expected to have an impact on future claims for emotional distress in Virginia based upon claims of racial harassment in violation of Virginia Code Section 8.01-42.1, and stalking under Section 8.01-42.3. Claims for emotional distress are not new in Virginia, nor is Virginia Code Section 8.01-42.1, a new code section. However, claims for emotional distress based upon violations of 8.01-42.1 or 8.01-42.3 may be on the rise. (Please note that the question of whether such claims will be covered under personal lines or commercial lines insurance policies is not addressed in this article.)

In Northern Virginia Kitchen, Bath & Basement, Inc., et al. v. William Ellis, Mr. William Ellis began working as an independent contractor for John Powell and Northern Virginia Kitchen, Bath & Basement, Inc. (“NVKBB”), a company that specialized in remodeling or constructing kitchens, baths, and basements. 856 S.E.2d 593, 594 (Va. 2021). The Virginia Supreme Court described Mr. Ellis as a black man who recently had moved from Mississippi to Virginia, and described Mr. Powell as a white man who was the president and owner of NVKBB. Id.

In July 2017, Mr. Ellis began building a basement bathroom as an independent contractor for NVKBB. Shortly thereafter, the homeowner (“Ms. C”) terminated her contract with NVKBB after a dispute with Mr. Powell. Despite terminating the contract with Mr. Powell, Ms. C asked Mr. Ellis to finish the basement bathroom project and undertake additional renovation work in her basement. When Mr. Powell learned of the agreement between Mr. Ellis and Ms. C, he left two voicemails on Mr. Ellis’s cell phone stating that Ellis had made “a ni***er move” that would not work out well for him; that “we don’t play that s**t down here in Virginia, boy;” that he [Powell] had “better not see [Ellis] over there [at Ms. C’s house];” and he had “motorcycle clubs and gangs around” and that Ellis was in “the wrong part of town to be playing that dirty s**t.” Id. In addition, Powell said that he had hired Ellis “for his color;” because he was “black” and “a minority,” but that Ellis had “pulled the same s**t that f***ing black people around here do” and had “ruined it for the next black man.” Id. Mr. Powell continued to send these messages despite Mr. Ellis expressly instructing him to stop. Id.

Powell’s harassment of Mr. Ellis continued until Ms. C posted on social media websites several of Powell’s messages to Mr. Ellis. Id. Subsequently, NVKBB filed a complaint against Ms. C and Mr. Ellis alleging defamation and conspiracy to injure a trade or business. Id. Mr. Ellis filed a counterclaim against NVKBB and Powell, alleging racially motivated harassment and stalking. Id.

The circuit court dismissed NVKBB’s claims, but allowed Mr. Ellis’s claims to proceed. Id. Ultimately, the circuit court issued monetary sanctions against NVKBB and Powell and granted partial summary judgment against Powell for his failure to comply with discovery orders. Id. After partial summary judgment was granted against Powell, NVKBB stipulated liability, leaving only Mr. Ellis’s damages for jury consideration. Id.

Mr. Ellis testified that the voice messages made him “upset” and “kind of scared” because of what Powell “threatened that he was going to do” and because “when a man say[s] something . . . my belief [is] that he really will follow through with it.” Id. at 595. Mr. Ellis also testified that he became nervous and afraid when around motorcycles and at night, and had to change his work routine to try and avoid Powell. Mr. Ellis did not seek medical attention, or other professional help, but felt “intimidated . . . harassed . . . [and] threatened.” Id. He did not present evidence of a physical manifestation of emotional distress, or proof of monetary damages at trial.

At the close of evidence, NVKBB and Mr. Powell moved to strike the evidence, which the circuit court denied. The jury found in favor of Mr. Ellis, and awarded him $100,000 in compensatory damages and $150,000 in punitive damages. Id. at 596.

The Virginia Supreme Court agreed to hear NVKBB and Powell’s appeal as to two assignments of error: (1) that Ellis failed to prove any damages, and (2) there was insufficient evidence to support compensatory damages. Id. On April 15, 2021, the Virginia Supreme Court affirmed the circuit court’s judgment entered on the jury’s verdict.

The Court, in its opinion, emphasized that NVKBB and Powell conceded liability on Ellis’s claim of racial harassment and his stalking claim. Id. at 596-597. Thus, the Court determined “that the plain language of Code §§ 8.01-42.1-42.3 expressly permits compensatory and punitive damages to be awarded to a plaintiff who prevails on such claims. Id. at 597. Accordingly, our discussion is limited to the narrow issue of whether Elli’s evidence was sufficient to support the jury’s award of any damages.” Id.

With that limited scope in mind, the Court noted that “NVKBB and Powell cite no authority that proof of monetary damages is a predicate for compensatory damages,” and “[a] review of our jurisprudence reveals that we have approved compensatory damages supported by evidence of non-pecuniary or emotional damages alone.” Id. at 597-598. In conclusion, the Court stated that “we find no error in the lower court’s judgment and no merit in NVKBB and Powell’s argument that monetary damages are a necessary predicate for an award of compensatory damages . . . [and] we find no error in the circuit court’s judgment that the evidence, consisting solely of mental anguish, emotional distress and humiliation, was sufficient to support the jury’s award of compensatory damages.” Id. at 599.

In general, emotional distress damages may be recovered in tort actions as ancillary to some physical injury, but the courts are not always receptive to emotional distress damages. For example, in nuisance claims the courts have held that litigants are only entitled to emotional damages from a nuisance that has endangered life or health. See Bowers v. Westvaco Corp., 244 Va. 139, 148 (Va. 1992); see also Fentress Families Trust v. Va. Elec. & Power Co., 93 Va. Cir. 98, 110 (Chesapeake Cir. Ct. 2016) (“emotional distress which was caused by fear and anxiety of possible future injuries is not of the type of [emotional distress] envisioned or compensable under Bowers”).

In establishing a “new rule” in 1973 in a case involving a claim for the negligent infliction of emotional disturbance, the Virginia Supreme Court decided that a physical impact to the plaintiff was not necessary. Hughes v. Moore, 214 Va. 17 (Va. 1973). However, the plaintiff in Hughes was able to demonstrate a physical manifestation of emotional disturbance, and the need for medical care, to support her claim for the negligent infliction of emotional distress. Seventeen years later, in Myseros v. Sissler, 239 Va. 8 (Va. 1990), the Virginia Supreme Court ruled that an anxiety claim, by itself, was not sufficient. The court said that clear and convincing proof of an unbroken chain of causal connection between the negligent conduct, the emotional disturbance, and physical manifestation of the emotional disturbance, was required to sustain a claim for the negligent infliction of emotional distress. In simpler terms, the court ruled that a plaintiff’s claims of being “upset” and “kind of scared,” without more, would not be sufficient to sustain a claim for the negligent infliction of emotional distress.

In deciding a case involving the intentional infliction of emotional distress in 2008, the Virginia Supreme Court said in SuperValu, Inc. v. Johnson, 276 Va. 356 (Va. 2008) that the tort of intentional infliction of emotional distress is not favored in the law, because there are inherent problems in proving a claim alleging injury to the mind or emotions in the absence of accompanying physical injury. The court said (citing Russo v. White, 241 Va. 23 (1991)) that a plaintiff alleging the intentional infliction of emotional distress must prove his case by clear and convincing evidence. In Russo, the Virginia Supreme Court affirmed the dismissal of the case on demurrer by the trial court, finding the plaintiff did not allege facts to support a claim for extreme emotional distress – such as an objective physical injury caused by the stress, the need for medical attention, confinement at home or in a hospital, or by the loss of income.

In conclusion, Northern Virginia Kitchen, Bath & Basement, Inc., et al. v. Ellis may represent a departure from the common law approach to claims for emotional distress. The courts have not traditionally been receptive to emotional distress damages, but civil actions under Virginia Code Section 8.01-42.1 or 8.01-42.3 may open the floodgates for lawsuits seeking compensatory and punitive damages with no showing of any objective proof of emotional distress. The case may represent a cause of action where a claimant can enjoy a substantial monetary award if he or she can persuade a jury that he or she has been subjected to acts of intimidation, harassment, violence, and, or vandalism, where such acts were motivated by racial, religious, gender, disability, gender identity, sexual orientation, or ethnic animosity.

For more information about this and other similar cases, please contact Daniel L. Robey, Esq. or Daniel J. Laws, Esq. of MMR.