Gabrielle Eddy v. Virgin Islands Water

PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 02-4057
GABRIELLE EDDY
v.
VIRGIN ISLANDS WATER AND
POWER AUTHORITY;
JAM ES BROWN;
JOHN DOE I; JOHN DOE II;
JOHN DOE III; JOHN DOE IV
Virgin Islands Water
and Power Authority,
Appellant
On Appeal From the District Court of the
Virgin Islands
(D.C. Civil Action No. 96-cv-00048)
District Judge: Hon. Thomas K. Moore
Argued December 9, 2003
BEFORE: NYGAARD, BECKER and
STAPLETON, Circuit Judges
(Opinion Filed: May 21, 2004)
Samuel H. Hall, Jr. (Argued)
Marie E. Thomas
Birch de Jongh Hindels & Hall
Poinsettia House at Bluebeard’s Castle
1330 Estate Taarnebjerg
Charlotte Amalie
St. Thomas, USVI 00802
Cathy M. Smith
Virgin Islands Water & Power Authority
P.O. Box 1450
Charlotte Amalie
St. Thomas, USVI 00804
Attorneys for Appellant
James M. Derr (Argued)
P.O. Box 664
Charlotte Amalie
St. Thomas, USVI 00804
Attorney for Appellee
OPINION OF THE COURT
STAPLETON, Circuit Judge:
The Virgin Islands Water and Power
Authority (“WAPA”) appeals from a
judgment entered on a verdict finding it
liable to Gabrielle Eddy (“Eddy”) for
intentional infliction of emotional distress.
WAPA further appeals the denial of their
renewed motion for judgment as a matter
of law. Because the evidence viewed in
the light most favorable to Eddy will not

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2
support recovery on an intentional
infliction of emotional distress claim that
is not barred by the exclusive remedy
provision of the Virgin Islands Workers’
Compensation Act, we will reverse the
judgment of the District Court of the
Virgin Islands and will direct that
judgment be entered in favor of WAPA.
I. Factual and Procedural Background
A. Factual Background1
Gabrielle Eddy was employed by
WAPA as a first class lineman trained to
do “hot line” work, where power lines
remain energized while work is being
done. On June 2, 1994, Eddy’s crew was
directed by its foreman to report to the
High Yard, an area of WAPA’s St.
Thomas power plant with large electrical
switches that are bigger and closer
together than switches found out in the
field where Eddy usually worked. The
crew was to perform what an internal
WAPA memo would later describe as
“planned corrective and preventative
maintenance” on a high voltage switch in
the yard. Eddy informed his foreman,
James Brown, that he had not been trained
for work in the High Yard. Brown
responded, “Well, Mr. Eddy, we want you
to do it, or [face] disciplinary action.” JA
at 1376. Brown then informed Eddy that
work on the switch had to be performed
hot for economic reasons.2
The crew did not have enough
insulating material to cover up all exposed
areas of the switch, and, accordingly,
while Eddy covered most of the switch
with insulating materials, the back area
remained uninsulated. In addition, Eddy
was not provided with an insulated
wrench, which was necessary to safely
perform maintenance on the switch.
Nonetheless, Brown directed Eddy to
repair the partially uninsulated switch with
the uninsulated wrench. Eddy protested,
responding to Brown: “You’ve got to be
crazy. You’ve got to be kidding me. In
there so close, I mean, you got to be
kidding me,” JA at 1380, and further
objected to using the uninsulated wrench.
Eddy had been previously sent home
twice for refusing to perform unsafe work.
1As our standard of review in
evaluating a motion for judgment as a
matter of law, discussed infra, requires us
to “view[] the evidence in the light most
favorable to the non-movant and giv[e] it
the advantage of every fair and reasonable
inference,” W.V. Realty, Inc. v. N. Ins. Co.,
334 F.3d 306, 311 (3d Cir. 2003), we state
the facts herein in the light most favorable
to Eddy.
2Eddy attended a meeting sometime
before the day of the accident at which
WAPA announced that all work in the
High Yard would be performed hot. Eddy
protested, along with another employee,
that employees did not have the proper
training or equipment for hot line work in
the High Yard.

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3
Several other WAPA workers testified to
having similar experiences.3 Eddy
believed that if he refused to work on the
switch in the High Yard that day, he would
be sent home, and would be terminated or
suspended.
Eddy climbed twenty feet up a ladder
as directed to repair the switch. During the
repair, as Eddy used the uninsulated socket
wrench to loosen a nut, the nut moved
suddenly and the back of the wrench made
contact with the back of the switch,
causing an electrical arc. Eddy was burned
by the hot flash from the arc and briefly
lost consciousness.
Eddy was in severe pain after the
accident. He suffered partial and full
thickness burns (requiring skin grafts), and
was burned on his face, chest, legs, and
groin. Eddy has since suffered flashbacks
during his sleep, seeing himself being
electrocuted again. He has suffered from
problems with impotence, and his
personality has changed completely since
the accident. He has been, at times,
severely depressed, angry, and stressed
out. Eddy’s treating psychologist, Dr.
Thomas Tyne, initially diagnosed him as
suffering from general anxiety disorder,
along with posttraumatic stress disorder.
In 1995, Dr. John Massimo, Eddy’s
treating psychiatrist, diagnosed him as
suffering from major depressive disorder
and posttraumatic stress disorder. Eddy
was prescribed antidepressants, an
antipsychotic, and sedatives.
By 1997, nearly three years after the
accident, Dr. Tyne diagnosed Eddy as
suffering from a permanent moderate
psychological impairment. In 2001, Dr.
Tyne determined that Eddy was still
suffering from posttraumatic stress
disorder and anxiety disorder. His general
anxiety disorder resulted in major
depression, and Eddy still suffered from
flashbacks, remembrances, inability to
concentrate, inability to sleep, and
disruption in eating and daily functioning
activities.
B. Procedural Background
Eddy collected worker’s compensation
as a result of the June 2, 1994 accident.
He also filed this five-count lawsuit on
March 21, 1996. Counts IV and V were
tried by a jury. Count IV alleged a
violation of 42 U.S.C. § 1983 by Brown
for depriving Eddy of various rights, but
the jury found in favor of Brown. Count V
alleged intentional infliction of emotional
3At least three other individuals
testified as to having similar experiences:
Joel Dowdye (“I was one of those
individuals who was sent home numerous
times for refusing to do work when I
thought it was unsafe.”), JA at 1098-99,
Kenval Thomas (WAPA’s policy was
“either you do the work or you get sent
home.”), JA at 1180 et seq., and Cleve
Stridiron (“[W]ell, if you refuse, they
basically say – they send you home. They
suspend you. Like you either do it or you
don’t, and then you’ll be, you know,
punished after that.”), JA at 1223-24.

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4
distress against both Brown and WAPA.
After moving for judgment as a matter
of law at the close of Eddy’s case, WAPA
renewed its motion at the close of
evidence, arguing, inter alia, that
“[p]laintiff presented no evidence that he
suffered emotional distress after hearing
Defendant Brown’s alleged words, nor
was there any emotional distress flowing
from Brown’s conduct prior to Plaintiff
climbing the latter.” JA at 216. The
motion was denied. The jury found
against Brown and WAPA on Count V,
and reached a verdict in the amount of
$ 5 , 0 0 0 . 0 0 a g a i n s t B r o w n a n d
$1,000,000.00 against WAPA. The jury
determined that Brown either (1) acted as
WAPA’s alter ego or (2) was directed or
authorized by WAPA.
The District Court entered a judgment
reflecting the verdict. Brown paid the
judgment against him and did not appeal.
WAPA filed a timely motion for judgment
notwithstanding the verdict. WAPA’s
motion for judgment notwithstanding the
verdict was thereafter denied, and WAPA
filed this timely appeal.
II. Jurisdiction and Standard of Review
The District Court had supplemental
jurisdiction over the intentional infliction
of emotional distress claim pursuant to 28
U.S.C. § 1367(a) and 48 U.S.C. § 1612(a).
We have jurisdiction to review the final
judgment of the District Court under 28
U.S.C. § 1291.
WAPA argues that the record is devoid
of evidence to support the elements of a
claim for intentional infliction of
emotional distress, the claim on which the
jury found WAPA liable. “We review the
District Court’s decision denying a motion
for judgment as a matter of law de novo,
and apply the same standard that the
District Court did, namely whether,
viewing the evidence in the light most
favorable to the non-movant and giving it
the advantage of every fair and reasonable
inference, there is insufficient evidence
from which a jury reasonably could find
liability.” W.V. Realty, Inc., 334 F.3d at
311 (citing Lightning Lube, Inc. v. Witco
Corp., 4 F.3d 1153, 1166 (3d Cir. 1993)).
We set forth the familiar standard for
determining the sufficiency of the
evidence in the margin.4
4 In determining whether the
evidence is sufficient to
sustain liability, the court
may not weigh the evidence,
determine the credibility of
witnesses, or substitute its
version of the facts for the
jury’s version. Although
judgment as a matter of law
should be granted sparingly,
a scintilla of evidence is not
enough to sustain a verdict
of liability. The question is
not whether there is literally
no evidence supporting the
party against whom the
motion is directed but
whether there is evidence

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5
III. Discussion
While WAPA raises numerous
arguments as to why it is entitled to
judgment as a matter of law, WAPA’s
central argument attacks the sufficiency of
the evidence in support of a claim for
intentional infliction of emotional distress
(“IIED”), given the liability limitations
imposed by the Virgin Islands Workers’
Compensation Act (the “WCA”). Because
it is dispositive of this appeal, we will only
address that argument.5
After discussing the elements of an
IIED claim and the claim preclusion
provision of the WCA, we will address the
sufficiency of the evidence with respect to
the two IIED theories discussed by the
parties. The first theory is that Eddy
suffered severe em otional distress
compensable under IIED because Brown
forced him to choose between performing
an unsafe task or potentially losing his
job–a job he could not afford to lose (the
“pre-accident emotional distress claim”).
According to WAPA, this is the only
theory that could escape the bar of the
WCA, but there is no evidence to support
it. The second theory, stressed by Eddy on
appeal, is that Brown coerced Eddy into
performing unsafe maintenance work,
thereby causing the accident, physical
injury and severe emotional distress (the
“post-accident emotional distress claim”).
A. The Tort of Intentional Infliction
of Emotional Distress
“[T]he Virgin Islands has designated
the Restatement as its law, until a contrary
statute is approved.” Monk v. Virgin
Islands Water & Power Authority, 53 F.3d
upon which the jury
could properly find a
verdict for that party.
Thus, although the
c o u rt d r a w s a ll
r e a s o n a b l e a n d
logical inferences in
t h e n o n m o v a n t’s
favor, w e m u s t
[reverse] an order
[denying] judgment
as a matter of law if,
upon review of the
record, it is apparent
that the verdict is not
supported by legally
sufficient evidence.
Brennan v. Norton, 350 F.3d 399, 425 n.20
(3d Cir. 2003) (quoting Lightning Lube,
Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d
Cir. 1993) (citations and internal
quotations omitted)).
5WAPA argues, inter alia, that there is
insufficient evidence to support the jury’s
finding that (1) Brown was the alter ego of
WAPA or (2) WAPA authorized or
directed Brown’s conduct. Because our
other holdings are dispositive of this
appeal, we will assume arguendo that
sufficient evidence supports the jury’s
finding that WAPA is liable for Brown’s
conduct, and we treat the actions of Brown
and WAPA as one for purposes of this
appeal.

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6
1381, 1387-88 (3d Cir. 1995) (citing 1
V.I.C. § 4).6 Section 46 of the
Restatement (Second) of Torts provides:
One who by extreme and
outrageous conduct intentionally or
recklessly causes severe emotional
distress to another is subject to
liability for such emotional distress,
and if bodily harm to the other
results from it, for such bodily
harm.
Id.
For there to be “severe emotional
distress,”
Comment j to § 46 requires that
a plaintiff prove that he suffered
severe distress that is not
unreasonable, exaggerated, or
unjustified. The same comment
further notes that severe distress
may encompass mental anguish,
fright, horror, grief, worry, and
other emotional disturbances. The
extent of the severity is to be
m e a s u r e d b y w h e t h e r a n y
‘reasonable man could be expected
to endure it.’
Chuy v. Phila. Eagles Football Club, 595
F.2d 1265, 1275-76 (3d Cir. 1979) (en
banc) (quoting § 46 cmt. j).
With respect to the “intentional” or
“reckless” element of § 46, according to
Comment i to § 46,
The rule stated in this Section
applies where the actor desires to
inflict severe emotional distress,
and also where he knows that such
distress is certain, or substantially
certain, to result from his conduct.
It applies also where he acts
recklessly . . . in deliberate
disregard of a high degree of
probability that the emotional
distress will follow.
Id.; see Chuy, 595 F.2d at 1275 (analyzing
comment i); see also 2 Dan B. Dobbs, The
Law of Torts § 303, at 826 (2001)
(“Dobbs”) (for the “intentional” or
“reckless” element of § 46 to be met, the
“defendant must intend severe emotional
harm (or reckless risk of it) and such harm
must in fact result”). A defendant acts
“intentionally” when he acts with the
purpose or desire to inflict severe
61 V.I.C. § 4 provides:
The rules of the
common law, as expressed
in the restatements of the
law approved by the
American Law Institute, and
to the extent not so
expressed, as generally
understood and applied in
the United States, shall be
the rules of decision in the
courts of the Virgin Islands
in cases to which they apply,
in the absence of local laws
to the contrary.

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emotional distress, or acts knowing that
such distress is substantially certain to
result from his conduct. Restatement
(Second) of Torts § 8A. “Mere risk,
however, even a very high risk, is not
enough to show substantial certainty.”
Dobbs § 24, at 48. Instead, a defendant
acts with substantial certainty where he
knows with virtual certainty “that [his]
actions will bring about the result.” Id. A
defendant acts “recklessly” where he
does an act or intentionally fails to
do an act which it is his duty to the
other to do, knowing or having
reason to know of facts which
would lead a reasonable man to
realize, not only that his conduct
creates an unreasonable risk of
[severe emotional distress] to
another, but also that such risk is
substantially greater than that
which is necessary to make his
conduct negligent.
Restatement (Second) of Torts § 500; see
also Restatement (Second) of Torts § 46.
B. The Exclusive Remedy Provision
of the WCA
The exclusive remedy provision of the
WCA, 24 V.I.C. § 284(a), provides, in
pertinent part:
When an employer is insured under
this chapter, the right herein
established to obtain compensation
shall be the only remedy against the
employer; but in case of accident
to, or disease or death of, an
e m p l o y ee n o t e n t i tl e d to
compensation under this chapter,
the liability of the employer is, and
shall continue to be the same as if
this chapter did not exist.
24 V.I.C. § 284(a).
The threshold inquiry in determining
“whether the exclusive remedies of
workmen’s compensation apply is whether
the injuries complained of fit within the
definition of ‘injury’ set forth in the statute
[as compensable], namely, ‘harmful
change[s] in the human organism.’”
Robinson v. Hess Oil V. I. Corp., 19 V.I.
106, 109 (D.V.I. 1982) (quoting 24 V.I.C.
§ 2 5 1 ( a ) ( 1 9 8 1 ) ) ; 7 s e e
7Despite not having been expressly
repealed, in 1994 the § 251 referenced in
Robinson and entitled “Definition and
application,” providing definitions for
various terms used in the workers’
compensation chapter, no longer appeared
in the Virgin Islands Code. At that time,
Session Law 6033 added to § 251 new
definitions for several terms. See 1994
V.I. Sess. Laws 6033, at 239. However,
another portion of that same Act read
“Section 251 is amended to read as
follows” and provided for an entirely
different § 251 that was unrelated to
defining terms used in the Act. Id. at 245.
24 V.I.C. § 251 now codifies the new,
unrelated § 251, and the previous list of
definitions of terms used in the workers’
compensation chapter, including the terms

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Chinnery v. Gov’t of the V. I., 865 F.2d 68,
71-72 (3d Cir. 1989) (to be compensable
under the WCA, “injuries must have arisen
out of and in the course of his
employment” and have “resulted in a
harmful change to him”) (internal
quotation marks and alterations omitted);
see also 6 Arthur Larson, Larson’s
Workers’ Compensation Law § 104.05, at
104-18 to -21 (2000) (“Larson”)
(analyzing in the context of IIED whether
physical injury of the kind dealt with by
the relevant workers’ compensation statute
is present). Where the employer’s conduct
has caused physical injury and the only
emotional distress is that resulting from
those physical injuries, the injury fits the
statutory definition and is compensable
under the WCA. The employee is entitled
to workers’ compensation but cannot make
an additional claim for emotional distress.
Chinnery, 865 F.2d at 72 (where employee
suffered a physical injury compensable
under the WCA, it “does not matter that
[he] also suffered mental or nervous
injuries”); see also Larson § 104.05, at
104-18 to -21.
There is, however, an implied
exception to this literal application of §
284(a). We recognized in Chinnery that,
regardless of the character of the injury,
that were supposed to have been added in
1994, no longer appears in the Virgin
Islands Code.
Since Session Law 6033 was
passed, two courts have assumed that the
pre-1994 § 251 is still in existence. See
Eddy v. Virgin Islands Water and Power
Authority, 955 F. Supp. 468, 478 (D.V.I.
1997) (noting that “Section 251 of Title 24
of the Virgin Islands Code defines the
terms used in the Workers’ Compensation
chapter” and quoting a definition from the
pre-1994 § 251); Boudreaux v. Sandstone
Group, 1997 W L 289867, *6 (V.I. Terr.
Ct. 1997) (referring to the definition of
“employer” in the pre-1994 § 251). At
least one Court has held that the workers’
compensation statute in the Virgin Islands
explicitly does not define “employer.” See
Nickeo v. Atlantic Tele-Network Co., 2003
WL 193435, *4 (V.I. Terr. Ct. 2003)
(“Conspicuously absent from the workers’
compensation statute is a definition of
‘employer’. . . .”).
The Virgin Islands legislature may
wish to amend Title 24 to ensure that the
Code contains definitions for the workers’
compensation chapter. Nonetheless, we
need not resolve today this ambiguity
between the pre-1994 § 251 and the
“amended” § 251 now codified at 24
V.I.C. § 251. Even assuming arguendo
that Virgin Islands law no longer provides
definitions for terms used in the
workmen’s compensation chapter (and
therefore no longer defines “injury”), there
can be no doubt that Eddy’s severe burns
resulting from the June 2, 1994 accident
would constitute physical “injury” under
any definition, thereby bringing Eddy’s
post-accident injuries within the scope of
the WCA. Indeed, Eddy applied for and
was granted benefits under the WCA
because of his post-accident injuries.

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there is an exception to the exclusivity bar
for tort suits where the employee can show
that “the conduct [of the employer can] be
regarded as so egregious as to exceed the
bounds of negligence and constitute the
sort of intentional wrongdoing necessary
to comprise an exception to the exclusive
remedy provision of WCA § 284(a).”
Chinnery, 865 F.2d at 72 (citing Johnson
v. Mountaire Farms of Delmarva, Inc.,
503 A.2 d 7 08 , 7 14 (M d. 1986)
(Maryland’s Act will only allow a tort suit
“where [the] employer had determined to
injure an employee or employees within
the same class and used some means to
accomplish this goal.”)).
The scope of this implied exception to
the bar of § 284(a) was explored in Ferris
v. Virgin Islands Industrial Gases, Inc., 23
V.I. 183 (V.I. Terr. Ct. 1987), in a case
much like the one before us. There,
Ferris’s supervisor gave him an electric
drill and ordered him to remove a
defective safety plug from an acetylene
cylinder. The electric drill ignited the gas,
seriously burning Ferris. When he sued
his employer, it moved for summary
judgment on the ground that, under § 284,
Ferris’s sole remedy was workmen’s
compensation. Ferris argued in response
that § 284 was not intended to bar suit for
injuries recklessly or intentionally caused.
While the Court recognized an implied
exception for intentionally inflicted
injuries, it stressed that that exception was
limited to situations in which there is an
“actual, specific and deliberate intention to
injure”:
An overwhelming majority of
American jurisdictions recognize
that an employer may be sued at
common law for inflicting “genuine
intentional injury” upon the
employee. To fit within this
narrow exception, the putative
plaintiff must allege that the
employer committed the tortious
act with an actual, specific and
deliberate intention to injure him.
Ferris, 23 V.I. at 188.
Based on this standard, the Ferris
Court rejected the claim that § 284 was
inapplicable because the employer’s
failure to provide Ferris with appropriate
tools, safety clothing, and adequate
instruction made an accident virtually
certain to occur:
Ferris’ proposed amended
complaint alleges that VIGAS
c r e a te d a d a ngerous work
environment through “negligence,
recklessness and intentional
misconduct” by failing to provide
him with the appropriate tools,
safety clothing and adequate
instruction. Attempts to classify
similar contentions as intentional
t o r t s a r e a l m o s t a l w a y s
unsuccessful because the actual
injury remains accidental in
character even where the corporate
employer knowingly permitted a
hazardous work condition to exist,
willfully failed to provide a safe
place to work or intentionally

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10
violated a safety statute. Thus,
the compensation bar has been
enforced where an employer
operated a saw mill despite
knowledge of a potentially fatal
hazard, [Williams v. Int’l Paper
Co., 181 Cal. Rptr. 342 (Cal.
Ct. App. 1982)], failed to
instruct an unskilled employee
how to perform a hazardous
t a s k , [ K i t t e l l v . V t .
Weatherboard, Inc., 417 A.2d
926 (Vt. 1980)], or removed
safety devices from machinery,
[Griffin v. George’s, Inc., 589
S.W.2d 24 (Ark. 1979)]. See
also [Rosales v. Verson, 354
N.E.2d 553, 558-60 (Ill. App.
Ct. 1976)]. In each case, the
result was inescapable because
what is being tested . . . is
not the degree of gravity or
depravity of the employer’s
conduct, but rather the
narrow issue of intentional
versus accidental quality . . .
of the precise event
producing injury. The
intentional removal of a
safety device or toleration of
a dangerous condition may
or may not set the stage for
an accidental injury later.
But in any normal use of the
words, it cannot be said, if
such an injury does happen,
that this was deliberate
i n f l i c t i o n o f h a r m
comparable to an intentional
left jab to the chin.
Ferris, 23 V.I. at 189-90 (quoting 2A
Arthur Larson, Workmen’s Compensation
Law § 68.13 (1986)).
Ferris pointed the Court to § 8A of the
Restatement (Second) of Torts under
which intent to cause injury includes not
only situations in which the actor desires
to cause injury, but also situations in which
the actor believes that the injury is
substantially certain to result. In response,
the Court acknowledged that a minority of
jurisdictions had expanded the exception
beyond “actual, specific, and deliberate
intent to harm,” but construed § 284
consistent with the majority o f
jurisdictions interpreting analogous
workers’ compensation statutes.
More recently, the District Court of the
Virgin Islands reaffirmed the limited scope
of this exception to § 284 in Gass v. Virgin
Islands Telephone Corp., 149 F. Supp. 2d
205, 211 (D.V.I. 2001) (granting summary
judgment for employer because “nothing
suggest[ed] that Gass’ injuries resulted
from his ‘employer’s conscious design’”),
rev’d in part on other grounds, 311 F.3d
237 (3d Cir. 2002).
The Ferris Court was correct in its
conclusion that a majority of jurisdictions
construe their analogous statutes to permit
a common law suit only when there is an
intent to cause harm. See Larson § 103.03,
at 103-7 to -8 (it remains an “almost
unanimous rule” that “the common law
liability of the employer cannot . . . be
stretched to include accidental injuries

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11
caused by . . . reckless . . . misconduct of
the employer short of a conscious and
deliberate intent directed to the purpose of
inflicting an injury”). It was likewise
correct in concluding that it should not
attribute to the Virgin Islands legislature
an intention to adopt the minority rule. As
we explained in a comparable situation
where the District Court of the Virgin
Islands adopted a majority rule of statutory
construction:
As the district court observed, the
Daniels present no evidence that
the Virgin Islands legislature, in
enacting [the statute], intended to
adopt the minority position on this
issue. Accordingly, we cannot say
that the district court erred in
following the majority rule. Cf.
V.I. Code Ann. titl 1, § 4 (1967)
(rules of common law, as generally
understood and applied in the
United States, shall be the rules of
decision in Virgin Islands courts);
see also Dyndul v. Dyndul, 541
F.2d 132, 134 (3d Cir. 1976) (even
for matters that are not strictly part
of the common law, V.I. Code Ann.
tit. 1, § 4 is impressive evidence
that the Virgin Islands legislature
intends majority rule to govern).
Benoit v. Panthaky, 780 F.2d 336, 339 (3d
Cir. 1985).
We thus conclude that the intentional
tort exception to the exclusive remedy
provision of the WCA is limited to
situations in which the employer had an
actual, specific and deliberate intention to
cause injury.
C. The Sufficiency of the Evidence
In order to uphold Eddy’s judgment,
we must find that the evidence viewed in
the light most favorable to him will
support a claim that both satisfies the
elements of § 46 of the Restatement
(Second) of Torts and avoids the bar of
WCA § 284. As we have noted, two
theories of recovery have been suggested.
We will examine each in turn to determine
whether either of them meets both of these
requirements.
1. The Pre-Accident Emotional
Distress Claim
The first theory suggests that Eddy
suffered compensable pre-accident
emotional distress because Brown forced
him to choose between performing an
unsafe task and losing his job. We agree
with WAPA that a rational jury could not
find for Eddy on this claim.
The evidence viewed in the light most
favorable to Eddy does establish that
Brown’s directive presented Eddy with a
hard choice and that this conduct could be
regarded by a rational juror as extreme and
outrageous and done in reckless disregard
of an obvious risk. There is no evidence,
however, which could support a finding
that being presented with that choice
occasioned emotional distress for Eddy “so
severe that no reasonable man could be
expected to endure it.” Restatement

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(Second) of Torts § 46 cmt. j. Neither
Eddy’s own testimony nor that of the
others who were present reveals any
indication of such severe distress resulting
from the directive prior to the accident. To
the contrary, Eddy’s own testimony
suggests that he believed he could perform
the work Brown requested without getting
hurt. Eddy testified, “I didn’t know I
would have get hurt. . . . If I know I was
going to get hurt, I wouldn’t have be
there.” JA at 1414. Further, Eddy
indicated that “[i]f Mr. Brown tell me to
go do the job, I figure everything is safe.”
JA at 1417. There is no evidence Eddy
suffered any symptoms immediately
preceding the accident that one would
associate with severe emotional distress.
Instead, Eddy accepted the assignment,
prepared the job site for the work,
removed three nuts off the top of the
switch while working within three feet of
the energized conductors, and requested
another wrench because the one he was
using would not fit. He waited for the
second wrench to arrive, took it, and
continued his work until his hand slipped
and the accident occurred.
2. The Post-Accident Emotional
Distress Claim
Assuming arguendo that the emotional
distress Eddy suffered as a result of the
accident and his physical injuries would
otherwise be compensable under IIED, this
claim comes within the literal scope of the
WCA because Eddy clearly suffered
statutory “injuries.” Accordingly, there
can be liability on this claim only if it is
not barred by the exclusive remedy
provision of the W CA.
As we have explained, a literal
application of § 284 bars recovery for
severe emotional distress occasioned by an
injury giving rise to a right to
compensation under the WCA. To escape
this bar, Eddy was required to prove that
his injury was the result of conduct
intended to cause injury. Thus, to escape
the bar of § 284, Eddy would have had to
prove that Brown gave his directive for the
purpose of causing harm to Eddy. He did
not do so.
Because the District Court erroneously
regarded all IIED claims as being beyond
the scope of § 284,8 it did not ask the jury
whether Brown acted with a purpose to
injure – rather, it instructed that liability
could be predicated on a finding of
recklessness. The jury apparently found
recklessness on the part of Brown, and the
record clearly supports that finding. The
record provides a basis for concluding that
Brown’s conduct created a very grave risk
of injury to Eddy and that Brown acted in
deliberate disregard of that risk. Indeed, as
Eddy stresses, his expert expressed the
opinion that the “chance of an accident
8See Eddy, 955 F. Supp. at 478 (“claims
such as reckless infliction of emotional
distress . . . are not in themselves related to
the type of injuries covered by the Virgin
Islands w orkm en’s c om pens atio n
scheme”) (quoting Robinson, 19 V.I. at
109) (internal quotation marks omitted).

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occurring” was “a hundred percent.” JA at
1539. Nevertheless, the record undeniably
shows that Eddy was injured in an
“accident.” Brown’s conduct may have
set the stage for that accident, but nothing
suggests that he had an affirmative desire
to inflict severe emotional distress on
Eddy.
Accordingly, Eddy’s post-accident
emotional distress claim is barred by WCA
§ 284(a).9
IV. Conclusion
We will reverse the judgment of the
District Cour t a n d r em and w ith
instructions to enter judgment in favor of
WAPA.
9Relying upon § 47 of the Restatement
(Second) of Torts, W APA raises a
provocative argument suggesting that no
IIED cause of action can lie with respect to
this post-accident theory because Brown
risked invading Eddy’s right to physical
well-being as opposed to his right to be
free from severe emotional distress. See
Restatement (Second) of Torts § 47
(“Except as stated in [the Restatement’s
sections on assault], and in [the section on
IIED], conduct which is tortious because
intended to result in bodily harm to
another or in the invasion of any other of
his legally protected interests does not
make the actor liable for an emotional
distress which is the only legal
consequence of his conduct.”). We have
no occasion here to express an opinion as
to whether in the absence of the WCA an
IIED claim could properly be predicated
on this second theory.

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