A Survey of Outrageous Conduct Under Colorado Law: Part I
Publication year | 1999 |
Pages | 5 |
1999, February, Pg. 5. A Survey of Outrageous Conduct Under Colorado Law: Part I
Vol. 28, No. 1, Pg. 5
The Colorado Lawyer
February 1999
Vol. 28, No. 2 [Page 5]
February 1999
Vol. 28, No. 2 [Page 5]
Articles
A Survey of Outrageous Conduct Under Colorado Law: Part I
by Matthew J. Rita, Elizabeth R. Rita
C 1999 Matthew J. Rita and Elizabeth R. Rita
A Survey of Outrageous Conduct Under Colorado Law: Part I
by Matthew J. Rita, Elizabeth R. Rita
C 1999 Matthew J. Rita and Elizabeth R. Rita
In the 1970 case of Rugg v. McCarty,1 the Colorado Supreme
Court explicitly recognized that "an action in tort will
lie to recover damages for severe emotional distress without
any accompanying physical injury."2 In adopting the tort
of intentional infliction of emotional distress,3 the court
noted that liability will be found "only in those cases
where the defendant's conduct has been extreme and
outrageous."4 Expounding on that standard, the court
quoted the following commentary
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community
Generally, the case is one in which the recitation of the
facts to an average member of the community would arouse his
resentment against the actor, and lead him to exclaim
"Outrageous!"5
Although a claim of outrageous conduct—which
"is but a recently minted term for the tort of
intentional infliction of emotional
distress"6—often coexists with other theories
of recovery,7 it is "an independent tort."8 As one
of Colorado's federal judges has cautioned, "a claim
for outrageous conduct . . . is not some sort of froth to be
lathered over other claims, but consists of discrete elements
established in law to prevent the intentional infliction of
mental suffering."9 To succeed on such a claim, a
plaintiff must prove by a preponderance of the evidence10
that (1) the defendant engaged in extreme and outrageous
conduct; (2) the defendant engaged in the conduct recklessly
or with the intent of causing the plaintiff severe emotional
distress; and (3) the plaintiff incurred severe emotional
distress which was caused by the defendant's conduct.11
During the three decades since its decision in Rugg, the
Colorado Supreme Court has reiterated the above "test
for outrageous conduct."12 In so doing, it has directed
that "[a]lthough the question of whether conduct is
outrageous is generally one of fact to be determined by a
jury,13 it is first the responsibility of a court to
determine whether reasonable persons could differ on the
question."14 Thus, the threshold legal question is not
whether the conduct at issue shocks the court's
"unelected conscience,"15 but whether the
"totality of the circumstances,"16 when viewed
through the lens of stare decisis,17 gives rise to a triable
issue of fact.
As some judges have observed, the plaintiff in a civil
lawsuit often believes that the defendant's conduct has
been outrageous.18 However, in order to give rise to
liability for the intentional infliction of emotional
distress, the defendant's conduct must be more than
unkind, unfair, or unreasonable; it must truly violate
community norms of acceptable behavior.19 Accordingly, before
asserting an outrageous conduct claim under Colorado law, a
conscientious plaintiff's attorney should objectively
determine that the client's subjective sense of outrage
would be shared by "an average member of the
community."20 Conversely, before challenging the legal
sufficiency of an allegation of outrageousness, a
conscientious defendant's attorney should reasonably
determine that the facts presented "do not rise to the
level of severity and indignity to justify a claim for
outrageous conduct."21
To assist practitioners in making these determinations, this
two-part article surveys the outrageous conduct decisions of
Colorado's two state appellate "courts of
record"22 (the Colorado Supreme Court23 and the Colorado
Court of Appeals24) and the two "inferior" federal
courts25 that sit in Colorado (the United States Court of
Appeals for the Tenth Circuit26 and the United States
District Court for the District of Colorado27). Part I
examines outrageous conduct claims in cases involving
accidents, the mishandling of dead bodies, deprivations of
personal liberty (i.e., detentions), medical treatment (or
the lack thereof), and sexual abuse. Part II will examine
such claims in cases involving commercial or business
matters, alleged defamation, employment relationships,
insurance, and disputes regarding property.
To the extent possible, this article describes the facts and
holding(s) of each relevant decision by quoting and citing
the court's own language. In addition, the article groups
the decisions within each category of cases according to
whether or not their recited facts—as alleged,
presumed, or proven to be true—were found to give
rise to a triable issue of outrageous conduct. The result, it
is hoped, is a useful reference tool for Colorado
practitioners. However, when referring to this two-part
article, the reader should be mindful of the following
points:
Cases that involved claims of outrageous conduct but that did
not address, either explicitly or implicitly, the question of
whether the conduct at issue could reasonably be deemed
outrageous, are not surveyed in this article.28
The only federal court decisions surveyed in this article are
those involving claims of outrageous conduct under Colorado
law.29 Although Colorado's federal judges are at times
called on to resolve outrageous conduct claims under the laws
of other states,30 their resolutions of such claims are
beyond the scope of this article.
Also beyond the scope of this article are decisions of the
United States Bankruptcy Court for the District of
Colorado,31 which "is not a free standing court."32
Although the unpublished opinions, orders, and judgments of
Colorado's state and federal courts are generally
accessible,33 their precedential value is limited.34
Accordingly, this article does not attempt to survey them.
Each of the decisions surveyed in this article is listed
under only one category, even though some of them arguably
fall within multiple categories.35 That being the case, a
practitioner dealing with a certain set of facts should refer
to all categories of cases into which those facts might fall.
The list of decisions surveyed in this article is current
only as of the date of its publication. Therefore,
practitioners should research subsequent decisions in order
to remain apprised of any new developments in Colorado's
outrageous conduct jurisprudence.36
ACCIDENT CASES
The cases in this category involved plane and car crashes,
alleged construction defects, and fires. While the results of
such accidents (i.e., deaths and personal injuries) were
generally severe, the same could not necessarily be said for
the character of the defendants' underlying conduct. The
lesson of these decisions is that "[t]he mere happening
of an accident does not mean that outrageous conduct was
present."37
Triable
First Interstate Bank v. Piper Aircraft Corp., 7719 F.Supp.
958 (D.Colo. 1989) (Carrigan, J.):
Decedent "was killed when the . . . airplane he was
piloting crashed. . . ." Id. at 958-59. "Also
killed in the crash were [decedent's] wife and two [of
his] daughters." Id. at 959. Decedent's surviving
"daughter . . . asserted an outrageous conduct claim. .
. ." Id. "Defendants . . . were [all] in some way
responsible for the design and manufacture of the
[decedent's] airplane." Id. "[P]laintiff was
present when the crash occurred, fatally injuring four
members of her family. . . ." Id. at 960.
Denying defendants' motion for summary judgment. "I
conclude that, under Colorado law, [plaintiff] may proceed on
her outrageous conduct claim." Id.
Not Triable
Deming v. Kellogg, 41 Colo.App. 264, 583 P.2d 944 (1978):
"Decedent, plaintiff's husband, was traveling east .
. . when defendant's truck, traveling . . . westbound . .
. ran off the road, down an embankment, narrowly missed
decedent's vehicle, and landed in the eastbound traffic
lane immediately in front of the vehicle being driven by
decedent." Id. at 265, 583 P.2d at 945. "Some
debris from the truck hit decedent's vehicle." Id.
Plaintiff "alleges that . . . decedent's death was a
proximate result of the outrageous conduct of the
defendant's employee." Id. at 266, 583 P.2d at 945.
Affirming dismissal of plaintiff's claim following
pretrial conference. "We agree with the trial
court's ruling that the mere happening of an accident
does not necessarily mean that outrageous conduct was
present." Id.
Dukeminier v. K-Mart Corp., 651 F.Supp. 1322 (D.Colo. 1987)
(Kane, J.):
"Plaintiff . . . seeks relief for injuries sustained
when she stepped through the floor into a trench while
shopping at [defendant's store]." Id. at 1323.
"[P]laintiff states that [defendant's] utter
disregard of the rights and feelings of plaintiff, displayed
in the reckless manner in which the store had covered the
trench in the floor, constituted outrageous conduct."
Id. at 1324.
Granting defendant's motion to dismiss. "The mere
happening of an accident does not mean that outrageous
conduct was present." Id.
Estate of Newton v. McNew, 698 P.2d 835 (Colo.App. 1984),
cert. denied (Colo. 1985):
Defendant "and his employees were participating in the
construction of a home. . . ." Id. at 836. "On the
back of the lot . . . was a flat piece of land . . . on which
[defendant] and his workers would occasionally burn pieces of
rubbish from the construction site. . . ." Id
"When [defendant] and his employees left the
construction site after completing work . . . the rubbish in
the fire area was...
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