Intentional Infliction of Emotional Distress
Defamation suits often seek damages in the form of compensation for humiliation and embarrassment. In some cases, such emotional distress damages can be recovered even if the words at issue are not defamatory. Virginia recognizes a cause of action for the intentional infliction of emotional distress (IIED) where the following four elements are met: (1) the defendant's conduct (statements or actions) was intentional or reckless; (2) the conduct was extreme, outrageous and intolerable; (3) a causal connection exists between the defendant's conduct and the resulting emotional distress; and (4) the resulting emotional distress was severe.
Virginia courts, however, do not favor claims for intentional infliction of emotional distress, particularly because it is easy for a plaintiff to fake emotional injury. Whether a plaintiff actually suffered severe emotional distress as a result of a defendant's behavior will always be difficult to prove in the absence of accompanying physical injury. Therefore, a plaintiff bringing such a claim cannot prevail absent "clear and convincing" evidence in his or her favor.
If the words are not defamatory, they must be considered extreme and outrageous for liability to attach. In other words, the statements (or conduct) at issue must be beyond all bounds of normal human decency, and regarded as intolerable in a civilized society. Mere insults will generally not be sufficient, as the law presumes that most insults, while unfortunate, must be endured as a part of life.
Even if the defendant acted intentionally or maliciously, liability for this tort generally will not attach unless the conduct at issue was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency. Of course, it is impossible to identify specifically what behavior will meet this standard. Courts make the determination on a case-by-case basis, using their own sense of judgment and fairness. Each case will be different and decided on its own facts.