Russo v. White

JUSTICE HASSELL, with whom JUSTICE STEPHENSON and JUSTICE LACY join,

dissenting.

I dissent because I believe that Ms. Russo properly pled a cause of action for the tort of intentional infliction of emotional distress and, therefore, she should not be deprived of her opportunity to prove her allegations before a jury.

Even though the tort of intentional infliction of emotional distress is a disfavored cause of action, it remains a viable cause of action until it is abolished. This cause of action is certainly appropriate under the facts and circumstances of this case in light of White’s alleged despicable conduct. According to the allegations in the motion for judgment, which we must deem true at this stage of the proceedings, White intentionally embarked upon a course of conduct designed to harass and frighten Russo, a single *29 parent who lived with her 14-year-old daughter. He placed in excess of 340 “hang-up” calls to her home and was arrested and convicted of causing a “telephone to ring with intent to annoy” in violation of Code § 18.2-429.

White’s alleged conduct was so outrageous in character, and so extreme in degree, as to transcend all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Without question, his alleged conduct was absurd, flagrant, intemperate, intentional, malicious, harassing, intimidating, annoying, childish, misguided, and reprehensible. White’s conduct was beyond the “bounds of decency” and should not be tolerated in a civilized community.

I disagree with the majority’s conclusion that Russo’s amended motion for judgment fails because she did not allege facts indicating extreme emotional distress which is “so severe that no reasonable person could be expected to endure it.” * Russo alleges in paragraph 12 of her amended motion: “As a proximate result of defendant’s intentional acts, plaintiff suffered severe emotional distress resulting in nervousness, sleeplessness, stress and its physical symptoms, withdrawal from activities which might necessitate plaintiff leaving her daughter at home, lack of concentration at work to the point where she received a reprimand.” Certainly, no reasonable person could or should be expected to endure the injuries endured by Russo.

I disagree with the majority’s reliance upon Ely v. Whitlock, 238 Va. 670 , 385 S.E.2d 893 (1989). In Ely , we held that the trial court erred because it did not sustain a demurrer to a count in a motion for judgment alleging intentional infliction of emotional distress. There, the plaintiffs alleged:

“[t]he statements and conduct of Rae H. Ely, as set forth in Counts I, II, and III of this Motion for Judgment were made and carried out by her intentionally and/or recklessly, were outrageous and intolerable and offend against generally accepted standards of decency and morality, and have proximately caused severe emotional distress to your plaintiff.”

*30 Id. at 677 , 385 S.E.2d at 897 . We stated that the plaintiffs in Ely failed to allege that the defendant’s acts were undertaken “for the specific purpose of inflicting emotional distress upon them, and that [the defendant] intended her specific conduct and knew or should have known that emotional distress would likely result.” Id. Russo’s amended motion for judgment does not contain these deficiencies.

Finally, I disagree with the majority’s conclusion that Russo’s motion for judgment contains “no claim . . . that she had any objective physical injury caused by stress, that she sought medical attention, that she was confined at home or in a hospital, or that she lost income.” Russo alleged, as the majority acknowledges, that she suffered “stress and its physical symptoms.” This allegation, in my opinion, is sufficient at the demurrer stage of the proceedings. Furthermore, in certain instances, physical injury is not an element required to establish the tort of intentional infliction of emotional distress. Naccash v. Burger, 223 Va. 406, 415-16 , 290 S.E.2d 825, 830-31 (1982); Womack v. Eldridge, 215 Va. 338, 342 , 210 S.E.2d 145, 148 (1974). Russo should have been given the opportunity to present medical testimony at trial regarding the nature and extent of her emotional and physical injury. I am not aware of any decision, before this case, wherein we have required a plaintiff to plead in a motion for judgment that “she sought medical attention” or that “she was confined at home or in a hospital.” Accordingly, I would reverse the judgment of the trial court and remand the case for a jury trial.

Not only does the majority create a new requirement that has not heretofore been articulated by this Court, but it is a requirement that I believe Russo has met. The majority relies upon the Restatement (Second) of Torts § 46 comment j (1965) and adopts its requirement that “liability arises only when emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it.”