Outrageous Conduct: Surveying the Bounds of Decency Under Colorado Tort Law—part Ii
| Publication year | 2015 |
| Pages | 51 |
Articles Tort and Insurance Law
Outrageous Conduct: Surveying the Bounds of Decency Under Colorado Tort Law—Part II
By Matthew Rita, Judge.
Coordinating Editor
William P. Godsman of the Law Office of William Godsman, Denver—(303) 455-6900, willgodsman@gmail. com
About the Author
Matt Rita is a senior partner with Link Equity Partners, a venture capital incubator based in Cambridge, Massachusetts—matt@linkventures.com, matt.rita@alum.mit.edu. After more than twenty years of practicing law here in Colorado, he is now leading the activities associated with the Link Ventures 2 fund. He thanks the library staff at his former firm, Fox Rothschild LLP, for assisting him in the completion of this article.
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.
Under Colorado law, a plaintiff may recover for the tort of intentional infliction of emotional distress . . . if the plaintiff proves," among other things, that "the defendant engaged in extreme and outrageous conduct."[1]"With regard to [that] element, the court must determine as a matter of law whether 'reasonable persons could differ on whether the defendant's conduct was sufficiently outrageous' before submitting the claim to the jury."[2] In other words, the court "must rule on the threshold issue of whether the plaintiff has alleged conduct that is outrageous as a matter of law."[3]
Since the seminal 1970 case of Rugg v. McCarty,[4] state and federal courts in Colorado have published numerous decisions examining "the level of outrageousness required for conduct to create liability."[5] In 1999, The Colorado Lawyer published a two-part survey of such outrageous conduct precedents.[6]Organized into subject matter categories, that survey classified each IIED case according to whether (or not) its fact pattern gave rise to a triable issue of outrageous conduct.
This is the second installment of a two-part update to the 1999 survey. Part I, which was published last month,[7] covered accident cases,[8] commercial cases,[9] defamation cases,[10] and detention cases,[11] To complete the update, this Part II addresses IIED cases involving employment relationships, physical injuries,[12] insurance matters, real and/or personal property transactions, and sexual abuse. This update's format[13] and scope[14] are as stated in Part I, and any oversights as of the date this Part II was submitted for final editorial review remain "the author's alone."[15]
Employment Cases
Triable
Archer v. Farmer Bros. Co., 70 P.3d 495 (Colo.App. 2002)(2-1),[16] aff'd on other grounds,[17] 90 P.3d 228 (Colo. 2004).
The defendant employer "investigated [plaintiff], whom it had employed for twenty-two years, for alleged misconduct." Id. at 497. "Later, on the order of [the] vice president of sales . . . , [plaintiff's] supervisors . . . delivered notice of termination and a final paycheck to [plaintiff] while he lay in bed at his mother-in-law's home recuperating from a heart condition." Id. "When [one of the supervisors had] initially demurred, [the] VP told him, 'I don't give a shit if [he] is on his deathbed, if I tell you to fire him, that's what you will do, or I'll get somebody who will."' Id. at 499. The supervisors "thereafter carried out [those] instructions, without inquiring further about the status of [plaintiff's] health, evaluating the possible medical consequences of delivering such news while [plaintiff] was ill, or discussing alternative means to deliver the news." Id. "Upon arrival at his mother-in-law's home, they entered uninvited." Id. "Upon entering the spare bedroom, they found [plaintiff] lying in bed, not fully clothed." Id. at 500. "Without asking [plaintiff] whether he was fit to discuss work matters . . . , they peremptorily announced that they had his termination papers, which they needed him to initial." Id. "Noticeably upset by the incident, [plaintiff] demanded that [his supervisors] leave the premises." Id. He "attempted to commit suicide that evening." Id. Plaintiff later "sued defendants ... for outrageous conduct," and "the jury returned a verdict . . . for [plaintiff] on his outrageous conduct claims against all defendants." Id. at 497.
Affirming denial of defendants' motions for directed verdict and judgment notwithstanding the verdict. "From th[e] evidence, we conclude that a reasonable person could find that defendants' conduct—barging into a relative's home and, without any prior notice or other consideration, abruptly firing a twenty-two-year employee while he lay in bed, partially undressed, recuperating from what five days earlier had appeared to be a heart attack, and was, in any event, a serious heart condition—so far exceeded the bounds of decency as to be atrocious and utterly intolerable in a civilized community." Id. at 500.
Atsepoyi v. Tandy Corp., 51 F.Supp.2d 1120 (D.Colo. 1999) (Kane, J.).
Plaintiff "is a citizen of Nigeria and a legal United States resident living in Colorado." Id. at 1122. "According to [p]laintiff, [defendant] treated minority workers less favorably than their white counterparts. He claims his co-workers subjected him to harassment, humiliation and racist conduct which [defendant] either ignored or encouraged." Id. One of defendant's employees "referred to blacks as 'niggers' and 'thieves,' and [plaintiff's] employer permitted such conduct." Id. at 1125. Plaintiff "also claims [defendant] . . . [had] specific discriminatory practices such as allowing whites, and not blacks, to use company restrooms." Id. Plaintiff "claims when he discussed his concerns with his superiors, they retaliated against him." Id. at 1122. "For instance, . . . [defendant] revoked his previously approved leave of absence" and "informed him he would be fired if he did not return to work during the time of his scheduled, prepaid trip to Nigeria." Id.
Denying defendant's motion to dismiss. "Unlike the cases cited by [defendant], here [plaintiff] bases his claim on the type of invidious discrimination and denigrating employer behavior that successful plaintiffs have used in outrageous conduct actions." Id. at 1125. "Accepting the allegations in the complaint as true, ordinary citizens would find [defendant's] discriminatory behavior atrocious and intolerable." Id.
Perkins v. Fed. Fruit & Produce Co., 861 F.Supp.2d 1285 (D.Colo. 2012) (Blackburn, J.).
"The plaintiffs allege that they were employed by defendants. . . ." Id. at 1288. The first "[p]laintiff. . . is African American." Id. He "alleges that he suffered disparate treatment and a hostile work environment . . . , and that this treatment was motivated by [his] race." Id. "According to [him], [the company's owner] referred to [him] using a racial epithet on several occasions." Id. He "complained to his supervisor. . . about [the owner's] discriminatory comments and harassing behavior." Id. "Following this complaint, [he] alleges, he was subjected to baseless employment actions," and [h]is employment was terminated." Id. The second "[p]laintiff. . . worked with [the first plaintiff]." Id. He "began to assist [the first plaintiff] by gathering information from employees about alleged, differential treatment of. . . employees based on their race." Id. "When [company] supervisors became aware that [the second plaintiff] was supportive of [the first plaintiff] in [his] complaints about differential treatment based on race, the supervisors began to retaliate. . . ." Id.
Denying defendants' motion for judgment on the pleadings. "An outrageous conduct claim can be based on invidious discrimination and denigrating behavior by an employer, particularly when the behavior leads to the termination of the plaintiff-employee." Id. at 1292. "The plaintiffs' allegations are sufficient to state an outrageous conduct claim." Id.
Ramirez v. GEO Group, Inc., 655 F.Supp.2d 1170 (D.Colo. 2009) (Brimmer, J.).
Plaintiff, "a Hispanic female, worked as a detention officer for [the] defendant [company] ... at their Aurora I.C.E. Processing Center . . . until she was fired." Id. at 1173. Plaintiff, "like all . . . detention officers, carried a set of keys to the facility while on duty; the keys were not supposed to leave the facility and were 'checked out' at the beginning of each shift." Id. "At the beginning of her overnight shift . . . , [plaintiff] checked out [a] key set. . . ." Id. "However, at the end of her shift, the keys were not logged back into the system." Id. The company "launched an investigation into the disappearance of the keys." Id. "[T]he facility's warden . . . placed [plaintiff] on administrative leave and recommended her termination ... for the loss of the keys." Id. at 1173-74. The company "terminated [her] . . . [and m]onths later. . . [her] keys were found on the roof of the facility." Id. at 1174. Plaintiff "contends that . . . her termination was really designed to get back at her for reporting inappropriate conduct by [the individual defendant], who was also employed as a . . . detention officer." Id. "In addition, [plaintiff] contends that [the individual defendant] herself played a role in the disappearance of the keys." Id. Plaintiff "reported that [the individual defendant] was taunting her about the loss of the keys, threatening that 'If you don't want your keys to come up missing you better turn them in before I get there."' Id.
Denying the individual defendant's motion for summary judgment. "Viewing the evidence in [plaintiff's] favor, a jury could conclude that [the individual defendant] had sufficient motive and opportunity to sabotage plaintiff's employment." Id. at 1189. "At the summary judgment stage, the issue is not...
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