What is Colorado's "Extreme and Outrageous Conduct" claim?
Although its label according to Colorado law is “extreme and outrageous conduct,” you may know this cause of action by its more colloquial name: intentional infliction of emotional distress (“IIED”). While claims for IIED are seen commonly in civil lawsuits, it is one of the most difficult causes of action to maintain because of its incredibly high legal standard. For more information, give us a call at 720-441-3328 or complete a consultation request form.
How do I prove an Extreme and Outrageous Conduct Claim in Colorado Courts?
In order to recover damages for Extreme and Outrageous Conduct, a plaintiff must prove all of the following by a preponderance of the evidence:
- The defendant engaged in extreme and outrageous conduct;
- The defendant did so recklessly or with the intent of causing the plaintiff severe emotional distress; and
- The defendant's conduct caused the plaintiff severe emotional distress.
There are a few legal “buzzwords” from these elements that need to be defined in order to fully understand them:
What is Extreme and Outrageous Conduct?
Extreme 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. Such outrageous conduct occurs when knowledge of all the facts by a reasonable member of the community would arouse that person's resentment against the defendant, and lead that person to conclude that the conduct was extreme and outrageous.
A simple act of unkindness or insult, standing alone, does not constitute outrageous conduct (though a single incident may constitute outrageous conduct if the incident would be so regarded by a reasonable member of the community). On the other hand, a series of acts may constitute outrageous conduct, even though any one of the acts might be considered only an isolated unkindness or insult.
Clear as mud, right? Some examples of alleged extreme and outrageous conduct sufficient to create a claim have included:
- Refusal of ambulance service to a critically ill plaintiff;
- Unwanted and egregious sexual harassment in the workplace;
- Improper inducement by a marriage counselor or priest to engage in sexual relations with one of his/her married clients;
- Subjecting a 20-year-old store employee with an exemplary background to a polygraph test and interrogation lasting over two hours in an attempt to get a confession for stealing employer's cash;
- Bad faith diagnosis and reporting by an unlicensed psychological associate that a man had sexually abused his daughter.
On the other hand, some examples of alleged conduct that did not rise to the standard of “extreme and outrageous” include:
- The termination of an employee as a scapegoat to cover-up the employer's involvement in illegal undercover narcotics investigation;
- An employer's failure to follow its own policies;
- Senior care employee's failure to monitor patient-decedent adequately and failure to recognize that the patient-decedent's symptoms required immediate treatment;
- Roommate's refusal to leave a residence shared with decedent (who suffered from multiple sclerosis, depression, and suicidal thoughts), and commencing or continuing an argument with the decedent leading to decedent's death by suicide.
What does reckless or intentional mean here?
A person intends to cause another severe emotional distress if that person engages in conduct for the purpose, in whole or in part, of causing severe emotional distress in another person, or knowing that his or her conduct is certain or substantially certain to have that result.
On the other hand, a person has acted recklessly if, at the time, the person knew, or, because of other facts known to him or her, reasonably should have known that there was a substantial probability that his or her conduct would cause severe emotional distress in another person. Recovery for this kind of reckless conduct is premised on the public policy interest in preventing people from escaping liability due to purposeful ignorance.
What is Severe Emotional Distress?
Severe emotional distress consists of highly unpleasant mental reactions, such as nervous shock, fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, or worry and is so extreme that no person of ordinary sensibilities could be expected to tolerate and endure it. The duration and intensity of emotional distress are factors to be considered in determining its severity.
Note: severe emotional distress does not require an accompanying physical injury.
What damages can be recovered for a claim of extreme and outrageous conduct?
Although IIED requires a plaintiff suffer “severe emotional distress,” damages recoverable under this theory of relief cover a much broader swath of loss/injury. In particular, actual damages, or both economic and noneconomic losses, are recoverable.
Recoverable economic damages include, but are not limited to:
- Loss of earnings or income,
- Ability to earn money in the future, and
- Reasonable and necessary medical, hospital, and other expenses.
Recoverable noneconomic damages include, but are not limited to:
- Physical and mental pain and suffering,
- Emotional stress,
- Public disgrace,
- Indignity, and
- Impairment of the quality of life.
IIED/extreme and outrageous conduct is a commonly misunderstood and misapplied cause of action in Colorado. At Volpe Law, our attorneys are ready to help you with your potential claim/defense: give us a call at 720-441-3328 or complete a consultation request form for more information on how we can help!
 Coors Brewing Co. v. Floyd, 978 P.2d 663, 665-66 (Colo. 1999).
 CJI § 23:1.
 CJI § 23:2.
 DeCicco v. Trinidad Area Health Ass'n, 40 Colo. App. 63, 573 P.2d 559 (1977).
 Pearson v. Kancilia, 70 P.3d 594 (Colo. App. 2003).
 Destefano v. Grabrian, 763 P.2d 275 (Colo. 1988).
 Ellis v. Buckley, 790 P.2d 875 (Colo. App. 1989).
 Montoya v. Bebensee, 761 P.2d 285 (Colo. App. 1988).
 Coors Brewing Co. v. Floyd, 978 P.2d 663 (Colo. 1999).
 Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988).
 Reigel v. SavaSeniorCare, L.L.C., 292 P.3d 977 (Colo. App. 2011).
 English v. Griffith, 99 P.3d 90 (Colo. App. 2004).
 CJI § 23:3.
 CJI § 23:4.
 Rugg v. McCarty, 173 Colo. 170 (1970).
 CJI § 23:6.
 CJI § 23:6.
 See also, CJI § 23:2, Notes on Use ¶ 4.
 Bebensee, 71 P.2d at 287, 289.
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