11.5 Evaluating the Elements

• Jurisdiction: Arizona

11.5 Evaluating the Elements. Where allegations of intentional infliction are made, the court must make the initial determination as to whether the acts underlying the claim can be considered sufficiently extreme and outrageous to state a claim for relief.⁵ The issue of whether the conduct was sufficiently “extreme and outrageous” may only go to the jury where reasonable minds could differ.⁶ This attempts to limit frivolous claims.⁷ Courts view intentional infliction on a case-by-case basis.⁸

The Arizona Supreme Court has recognized that the terms “outrageous conduct” and “severe emotional distress” are not “readily capable of precise legal definition.”⁹ However, in evaluating specific conduct, the court or jury will consider two factors: (1) the position occupied by the defendant; and (2) the defendant’s knowledge that the claimant is peculiarly susceptible to emotional distress due to some physical or mental condition.¹⁰

Arizona courts have set a high threshold for what constitutes “extreme and outrageous” conduct. The Arizona Supreme Court has stated that the underlying acts supporting the intentional infliction claim must “be ‘atrocious’ and ‘beyond all bounds of decency’ so that an average member of the community would regard it as outrageous.”¹¹ The “conduct necessary to sustain an intentional infliction claim falls at the very extreme edge of the spectrum of possible conduct.”¹²

Thus, even if the defendant’s acts are willful, intentional, and malicious, they will not necessarily support an intentional infliction claim without the additional showing that the conduct was extreme and outrageous.¹³ Indeed, the conduct may be otherwise tortious, unjustifiable, and even illegal, and not be outrageous for purposes of an intentional infliction claim.¹⁴ A number of cases illustrate the difficulty of proving “extreme and outrageous” conduct.¹⁵

For example, in Wattsv. Golden Age Nursing Home, the court held that a nursing home’s failure to notify the wife for two days that her husband was ill with pneumonia, where husband died two days after notification was, as a matter of law, not “extreme and outrageous” conduct for purposes of establishing intentional infliction claim.¹⁶ In Nelson v. Phoenix Resort Corp.,¹⁷ the court held that a company’s CFO failed to establish an intentional infliction claim, despite being called to the office at 2 a.m., accompanied to the lobby by armed personnel, who also followed him into the bathroom, and then fired him in front of news media who had been invited to watch.

Several Arizona cases, have, however, found certain conduct sufficiently “outrageous” to support an intentional infliction claim.¹⁸ For example, a company’s failure to investigate a sexual harassment claim by an employee, which caused the harassment to continue for months and left the employee without redress, was sufficient to support an intentional infliction claim.¹⁹ In another example of sufficiently “outrageous” conduct, in Lucchesi v. Stimmel, the court held that the failure of a specialist in high-risk deliveries to be present at birth he assumed responsibility for, which resulted in the death of a child during an attempted breach delivery by a less experienced doctor, precluded summary...