Outrageous Conduct
| Publication year | 1974 |
| Pages | 1 |
| Citation | Vol. 3 No. 3 Pg. 1 |
William A. Trine, J.
William A. Trine, Boulder, is a member of the firm of Williams, Trine, and Greenstein. His article is based on a previous presentation to the Colorado Trial Lawyers Association at its 1973 annual meeting.
In the case of Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970), the Colorado Supreme Court recognized the tort of "outrageous conduct" as defined and set forth in the Restatement (2d) of Torts, § 46 (1965).[1] The recognition of this tort, easily overlooked in the body of the court's opinion, can be likened to an iceberg: very little of the far-reaching effects of this recognition are apparent on the face of the opinion, the main thrust of which is concerned with the tort of invasion of privacy. To comprehend the full extent of the impact of the court's adoption of outrageous conduct as a tort, it is necessary to understand the historical development of the tort, and then its application to particular fact situations at present time. This article deals with those matters and also the questions of whether exemplary damages are allowed and whether attorneys' fees can be recovered. Practical problems concerning pleadings, use of expert witnesses, and which persons are proper party plaintiffs are covered.
GENERAL HISTORICAL REVIEW
In the year 1934 the Restatement of Torts did not recognize liability for either emotional distress or bodily harm from conduct intended to cause emotional disturbance.[2] Although by 1934 there were numerous outrageous conduct cases, there was no uniformity in the decisions which frequently spoke of intentional infliction of mental suffering and willful and wanton conduct giving rise to mental suffering. The courts frequently tried to improperly categorize the conduct as an intentional breach of contract, an invasion of privacy, a technical assault, or false imprisonment.[3]
However, because of the developing body of law, the Restatement of Torts in 1948 recognized that "one who, without a privilege to do so, intentionally causes severe emotional distress to another is liable (a) for such emotional distress, and (b) for bodily harm resulting from it."[4]
It should be noted that the above provision of the Restatement acknowledged the defense of "privilege to do so" and also limited the cause of action to intentional conduct. However, simultaneously a body of law was developing permitting recovery for mental distress caused by unintentional conduct sounding in recklessness, willful and wanton conduct, and at times simple negligence.[5]
Accordingly, the 1965 revision of Restatement of Torts contained significant changes from previous revisions.[6] Section 46 of the Restatement of Torts (2d) permits recovery for either intentional or reckless outrageous conduct which causes severe emotional distress, and the defense "privilege to do so" is omitted. Further, where the outrageous conduct is directed at X, any member of X's immediate family who is present can recover for severe emotional distress resulting from observing the outrageous conduct, whether or not the emotional distress results in bodily harm. In addition, any other person, including a stranger, who is present at the time of such outrageous conduct may also recover but only if the emotional distress in observing the conduct results in bodily harm.
Although the Colorado Supreme Court in Rugg v. McCarty, supra, cities only § 46(1) in the body of the opinion, the Court nevertheless adopts § 46 in its entirety, including § 46(2), and it would therefore appear that the following hypothetical fact situation gives rise to liability: As a practical joke, X falsely tells Y in front of Y's child and Y's lady friend who is visiting that Y's husband has been badly injured in an auto accident on the street just outside the home. Y's child screams and becomes hysterical, and Y's lady friend faints, hitting her head on a piece of furniture, resulting in physical injury. X is subject to liability to Y and Y's child for their emotional distress and is also subject to liability to Y's lady friend for her emotional distress and bodily harm.
An understanding of the historical development of the tort of outrageous conduct is therefore helpful to the lawyer presently handling an outrageous conduct case. Cases predating the year 1965 can be presently cited as persuasive, even though fact situations presented are at times erroneously categorized by the court, i.e., as "breach of contract," "conspiracy," or "technical assault." The Restatement of Torts (2d) § 46 (1965) sets forth a uniform definition and uniform guidelines under the simple category of "outrageous conduct." However, cases which predate the Restatement (2d) and are variously mislabeled or otherwise erroneously categorized, but which would now be properly described as "outrageous conduct," should be cited as persuasive in an outrageous conduct case with an explanation to the court that such similar fact situation did give rise to a cause of action, although improperly categorized, prior to the recognition of outrageous conduct as a tort in Colorado. Similarly, a jurisdiction which has not adopted or recognized § 46 of the Restatement (2d) may limit recovery to "intentional conduct," and may recognize a defense of "privilege to do so." If opposing counsel cites recent cases from such jurisdictions on persuasive similar factual situations, such cases can be easily distinguished because that jurisdiction has simply not yet adopted the 1965 definition set forth in § 46.
COLORADO-HISTORICAL REVIEW
There are a number of Colorado cases which predate Rugg v. McCarty, supra, wherein the court struggled to find some familiar and traditional basis of liability, and which cases would properly now be categorized as outrageous conduct.
In the earliest reported case,[7] a town meeting was called to devise some means or method of "getting rid of the plaintiff and her newspaper," and at the town meeting a resolution was adopted requesting that the plaintiff leave town or suffer the consequences. The plaintiff failed to voluntarily do so, was jailed, then forcibly placed aboard a train, destination unknown. The appellate court upheld a jury verdict for the plaintiff for compensatory damages and exemplary damages, recognizing that "a corporation may be held liable in damages for torts in pursuance of a conspiracy" and that the corporation was liable for the "fraudulent or malicious motives" of its agents which is imputed to the corporation. The court then attempted to label the conduct of the defendants by discussing civil conspiracy, "conversion of plaintiffs newspaper" by forcing her to leave town, and for unlawful arrest and false imprisonment. Today, these facts would give rise to a claim of outrageous conduct, false arrest and false imprisonment.
The Arkansas court similarly had difficulty in attempting to categorize or label the conduct of a mob who threatened to lynch the plaintiff, resulting in severe mental distress.[8] However, liability was also there upheld on a theory similar to outrageous conduct.
In another early Colorado case,[9] it was alleged that plaintiff was humiliated and mentally distressed by the defendant's agent who "grossly, repeatedly, willfully and maliciously insulted, in loud, profane and indecent language, containing threats, insults and abuse," and the trial court's dismissal of the complaint for failure to state a cause of action was reversed, the appellate court stating "that damages resulting from mental suffering, caused by the use of insulting language" is actionable, but only because such conduct constitutes a "breach of the contract" between the plaintiff passenger and the defendant railroad. Again, the attempt was made to find some familiar and traditional basis of liability.
Similarly, in a later case, it was held that the willful and wanton breach of express contract which "was not a mere passive breach, but was intentional" gave rise to a claim for mental suffering damages.[10] There, a photographer employed by the plaintiff exposed her photograph to public view without her consent causing mental suffering, and the court reasoned that the photographer breached "an implied contract" and discussed "another form of wrong involving in effect an invasion of a person's right to privacy." At the present time, such facts could very well give rise to claims of both outrageous conduct and invasion of privacy.
In another case, the Colorado court similarly condemned the conduct of the defendant in permitting a photograph of the body of the plaintiffs deceased husband to be taken and exhibited in a newspaper without her consent, reasoning that the conduct constitutes a "willful and wanton breach of implied contract. . . to protect relatives of the deceased from such an outrage.[11]
With the Colorado Supreme Court's recognition of outrageous conduct as a tort, it is no longer necessary to create "implied contract" and "conspiracy" fictions in an effort to justify liability, as was done in the above-cited early Colorado cases. Such conduct would fall within the definition of outrageous conduct as defined by the Restatement of Torts (2d), § 46.
APPLICATION TO PARTICULAR FACTS
The tort of outrageous conduct is unique in that it is not limited to any particular category of conduct but can apply to any fact situation...
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