Outrageous Conduct: Surveying the Bounds of Decency Under Colorado—part I

JurisdictionColorado,United States
CitationVol. 43 No. 8 Pg. 67
Publication year2015
43 Colo.Law. 67
Outrageous Conduct: Surveying the Bounds of Decency Under Colorado—Part I
Vol. 43, No. 8 [Page 67]
The Colorado Lawyer
August, 2015

Articles Tort and Insurance Law

Outrageous Conduct: Surveying the Bounds of Decency Under Colorado—Part I

By Matthew Rita.

Tort and Insurance Law articles provide information concerning current tort law issues and insurance issues addressed by practitioners representing either plaintiffs or defendants in tort cases. They also address issues of insurance coverage, regulation, and bad faith.

Coordinating Editor

William P. Godsman of the Law Office of William Godsman, Denver—(303) 455-6900, willaodsman@amail.com

This article surveys Colorado's "outrageous conduct" case law since 1999, when the Colorado Supreme Court last addressed the tort of intentional infliction of emotional distress.

The tort of intentional infliction of emotional distress (IIED) has been recognized in Colorado for well over four decades.[1] One of the required—and most litigated—elements of that cause of action is "outrageous conduct," which is the term often used to refer to a claim of IIED.[2] Jurors in this state are instructed that

[e]xtreme and outrageous conduct is conduct that is so outrageous in character, and so extreme in degree, that a reasonable member of the community would regard the conduct as atrocious, going beyond all possible bounds of decency and utterly intolerable in a civilized community.[3]

However, deciding whether particular conduct is outrageous is left to the jury only if the trial judge determines that reasonable people could disagree on the issue.[4]

In 1999, the Colorado Supreme Court revisited "the level of outrageousness required for conduct to create liability,"[5] and The Colorado Lawyer published a contemporaneous two-part survey of state and federal court decisions applying that legal standard in this jurisdiction.[6]Part I of the survey covered cases involving accidents,[7] the mishandling of dead bodies,[8] detentions and other deprivations of personal liberty,[9] medical treatment,[10] and sexual abuse.[11] Part II addressed cases arising out of commercial or business disputes,[12] alleged defamation,[13] employment relationships,[14] insurance matters,[15] and real and/or personal property transactions.[16]

Using a similar taxonomy,[17] this two-part article updates the 1999 survey by examining the intervening sixteen-plus years of published[18] decisions from Colorado's state[19] and federal[20] courts. Part I covers accident cases, commercial cases, defamation cases, and detention cases. The remaining categories will be covered in Part II, which is scheduled for publication next month. Within each category, the IIED cases are classified according to whether their facts—as alleged, p resumed, or proven[21] —gave rise to triable issues of outrageous conduct.[22] Each of the court decisions is listed and summarized[23] only once, although some could fairly be placed within more than one category.[24]

Excluded from the body of this article are cases that touched on IIED claims under Colorado law but did not address—either explicitly or implicitly—the question of whether the conduct at issue could reasonably be considered outrageous.[25] Also excluded are cases in which extreme or outrageous conduct was discussed outside the tort law context, such as where governmental officials were accused of substantive due process violations,[26]otherwise actionable speech was held to be protected by the First Amendment,[27] a criminal defendant's extreme conduct served as the basis for an upward sentencing departure,[28] or an employee's state law IIED claim was preempted by federal labor law.[29]

Like the original two-part survey, this update includes "only those decisions that were reported as of the date of its publication."[30] Therefore, before treating the rulings summarized below as the last word on "Colorado's outrageous conduct jurisprudence,"[31] practitioners should undertake "appropriate research of subsequent [IIED] cases."[32]

Accident Cases

Not Triable

Green v. Qwest Servs. Corp., 155 P.3d 383 (Colo.App. 2006), cert, denied (Colo. 2007).

Defendants "performed [a] telephone line repair, but while they were boring under [plaintiffs'] driveway, they nicked the natural gas line servicing the . . . home. This caused an explosion which completely destroyed [plaintiffs'] home. . . ." Id. at 384. Plaintiffs "filed . . . claims for relief, including outrageous conduct. . . ." Id. Among other things, plaintiffs "alleged that (1) [defendants] sent two inexperienced employees to perform the inherently dangerous work of excavating near a natural gas line; (2) the employees were poorly trained and unsupervised; [and] (3) [defendants] intentionally made inaccurate locate requests. . . ." Id. at 386. "Defendants moved for partial summary judgment seeking dismissal of the outrageous conduct claims." Id. at 384. "The trial court granted the motion, finding that [defendants'] conduct [did] not rise to the level of recklessness or outrageousness to sufficiently establish a cause of action. . . ." Id. (internal quotations omitted).

Affirming partial summary judgment for defendants. "The tort of outrageous conduct was designed to create liability for a very narrow type of conduct." Id. at 385. "The fact that an accident occurred while the defendants were] engaged in an inherently dangerous activity does not elevate it to outrageous conduct." Id. at 386.

Rojas v. Engineered Plastic Designs, Inc., 68 P.3d 591 (Colo.App. 2003).

Defendant "maintained a room on its premises where it kept a keg of beer, a television, and a pool table." Id. at 591. "Officers and employees of [defendant] used the room for social gatherings after work." Id. "After completing work for the day, an . . . employee came to this room and consumed beer with other employees and officers of [defendant]." Id. "The employee then left [defendant's] premises in his own vehicle," which "collided with a vehicle driven by [plaintiffs' son]." Id. Plaintiffs' son "died, and [his passenger] was injured in the accident." Id.

Affirming summary judgment for defendant. "[T]he evidence showed only that [defendant] made beer available to the employee and that [defendant's] officers did not prevent the employee from driving." Id. at 594. "This conduct can not be considered outrageous in the context of plaintiffs' claim. . . ." Id.

Commercial Cases


Roget v. Grand Pontiac, Inc., 5 P.3d 341 (Colo.App. 1999), cert, denied (Colo. 2000).

Plaintiffs "entered into an auto lease with [defendant]." Id. at 344. "[T]he alleged course of conduct of the employees of [defendant] included strong-arming during negotiations, committing fraudulent acts, and falsifying documents related to the lease transaction." Id. at 346. Also, defendant "refused to give [one of the plaintiffs] the keys to his car when he requested them." Id. "[T]he jury returned a verdict in favor of [plaintiffs] ... on their claim of outrageous conduct." Id. at 344.

Affirming denial of defendant's motion for directed verdict. "In our view, reasonable persons could differ as to whether the conduct of [defendant] was sufficiently extreme to result in liability." Id. at 346. "The question, therefore, was properly one for the jury to resolve." Id.

Perhaps Triable

Llewellyn v. Shearson Fin. Network, Inc., 622 F.Supp.2d 1062 (D.Colo. 2009) (Krieger, J.).[33]

"According to the Complaint . . . , [p]laintiff. . . borrowed a sum of money . . . , giving a deed of trust on a parcel of real property to secure repayment." Id. at 1065. He "later attempted to refinance that loan, tendering the $600,000 principal balance to [the lenders'] agent." Id. "However, ... an employee of [that agent], failed to pay the loan, and instead converted the funds to his own use." Id. "At some point, [defendant] undertook efforts to collect on the . . . loan." Id. "Because [plaintiff] stopped making payments on the loan (believing it to have been repaid) and because [defendant's] records reflected that a balance remained . . . , [defendant] engaged its attorneys ... to begin foreclosure proceedings." Id. Plaintiff "contacted [defendant] and its agent . . . to inform them that the loan had been paid in full." Id. "Nevertheless, [defendant] proceeded to provide negative credit information regarding [plaintiff's] payment history to various credit reporting agencies, thereby adversely affecting [plaintiff's] credit rating." Id. Plaintiff "alleges that the extreme and outrageous conduct committed by [defendant] consisted of' knowingly providing false credit information to several credit bureaus."' Id. at 1068.

Denying defendant's motion to dismiss. "[T]he facts alleged by [plaintiff], taken in the light most favorable to him, are sufficient to state a claim for outrageous conduct." Id. at 1071. "Whether [plaintiff] can ultimately prove sufficiently outrageous and intentional conduct is a question that will await a summary judgment motion." Id.[34]

Not Triable

Collins v. BAC Home Loans Servicing LP, 912 F.Supp.2d 997 (D.Colo. 2012) (Daniel, C.J., adopting recommendation of Tafoya, J.).

Plaintiff "offered [two] investment properties as collateral for [certain] loans." Id. at 1000. He "eventually failed to make mortgage payments, and the properties were foreclosed." Id. Plaintiff "filed this suit . . . against [defendant] in connection with negative credit reports which resulted from [the] foreclosure on [plaintiff's] investment properties." Id. "Plaintiff. . . sen[t] letters to various credit reporting agencies . . . , disputing the manner in which the . . . loans appeared on his credit reports." Id. at 1006. "As the bases for his disputes, [p]laintiff told the [agencies] that he did not owe a debt to [defendant]; that he . . . had closed the loan accounts; and that he had never been late making his...

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