A Survey of Outrageous Conduct Under Colorado Law: Part I

Publication year1999
28 Colo.Law. 5
Colorado Lawyer

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]

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


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


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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